State v Gaunavou [2015] FJHC 831; HAC250.2013 (28 October 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 250 of 2013

STATE

V

WAISIKI GAUNAVOU

Counsel: Ms. K. Semisi for State
Mr. J. Savou with Mr. W. Nainima for Accused
Hearing: 12th, 13th October 2015
Summing Up: 14th October 2015
Judgment: 15th October 2015
Sentence: 28th October 2015

SENTENCE

[Name of the victim is suppressed. The victim will be referred to as [L.S.]

1. Waisiki Gaunavou, you stand convicted for one count of Indecently Annoying Any Person contrary to section 213 (1) (b) of the Crimes Decree 2009and for one count of Rape contrary to section 207 (1) and (2) (b) and (3) of the Crimes Decree.
   
2. On count No. 1 you were convicted on your own plea of guilty and on count No. 2 you were convicted after you were found guilty after trial.
   
3. The brief facts of the case were, you are the grandfather of the complainant 'L.S.' and she was 8 years old at the time you committed the above offences on her. Between 1st January 2013 and 17th June 2013 you, with intend to insult the modesty of the complainant, exposed your penis to the complainant. Also when the complainant was in the sitting room, you called her to your bedroom and touched inside her vagina with your 2 fingers.
   
4. In terms of Section 213 (1) of the Crimes Decree 2009, the offence of Indecently Annoying Any Person carries a maximum penalty of imprisonment for 1 year.
   
5. The aggravating factors are, that you breached the trust reposed on you by 'L.S.' as the grandfather and that 'L.S.' was in her tender years of age when you committed the offence on her.
   
6. Mitigating factors are, you are a first offender. I also consider your age and all what was said in court by your character referee. You are remorseful of your actions.
   
7. I take 4 months as the starting point and add 3 months for the aggravating factors and deduct 2 months for the mitigating factors. I further deduct 2 months for your early guilty plea. Therefore your final sentence for count no. 1 is 3 months imprisonment.
   
8. The maximum penalty for Rape under the Crimes Decree 44 of 2009 is imprisonment for life. Tariff for the offence of Rape of children is 10 – 16 years imprisonment. (AnandAbhay Raj v. State [2014] FJHC 12; CAV0003.2014 (20 August 2012).
   
9. The aggravating and the mitigating factors will be the same as mentioned above in paragraphs 5 and 6 except that you will not get a discount that was given in count No. 1 for your early guilty plea. I pick 12 years as my starting point. I add 3 years for the aggravating factors and deduct 2 years for the mitigating factors. Now your interim sentence is 13 years.
   
10. I further deduct 2 years and 4 months for your period in remand. Therefore your final sentence for Rape in count No. 2 is 10 years and 8 months. Your non-parole period will be 9 years.
    
11. I order that the sentence of imprisonment in counts 1 and 2 to run concurrently.
    
12. Having considered the domestic relationship between you and the victim 'L.S.', I order a permanent Domestic Violence Restraining Order in place identifying the victim 'L.S.' as the protected person.
    
13. Having considered the domestic relationship between you and the victim 'L.S.', I order a permanent Domestic Violence Restraining Order in place identifying the victim 'L.S.' as the protected person.
    

Priyantha Fernando
Judge

At Suva

Solicitors
Office of the Director of Public Prosecution for State
Office of the Legal Aid Commission for Accused