State v Ratudamudamu - Sentence [2015] FJHC 873; HAC204.2014 (13 November 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No. 204 of 2014

STATE

V

EMORI RATUDAMUDAMU

Counsel: Ms. K. Semisi for State
Ms. P. Salele for the Accused

Dates of hearing: 2,3 and 4 November 2015
Date of Sentence: 13 November 2015

SENTENCE

[1] The accused was convicted of two representative counts of rape and one representative count of sexual assault after trial in this Court.

[2] The accused was the step father of the victim who at the time was 6 years of age. At various times in 2014 he would rouse Edith (not her real name) from her sleep and take her into his bedroom where he would lick her genitals and penetrate her with his fingers. He would then subject her to full penile rape. The crimes were discovered at school when Edith felt ill and her mother came to know. A medical examination revealed evidence of recent violent sexual abuse.

[3] The accused is 58 years old and at the time was working as a landscape gardener at the University of the South Pacific. He has an estranged wife and two children by that relationship, all of whom he continues to support. He is no longer with Edith's mother. He co-operated with the police and his counsel tells me he is remorseful but I have seen very little evidence of that at trial.

[4] In a victim impact report, the victim tells of being fearful of men and has frequent flashbacks of the terrible abuse she suffered. As a result of the crimes she suffered genital pain, chest pain, stomach ache and headaches, all symptoms of obvious traumatic events.

[5] The three crimes the accused is convicted of are representative crimes and as such this Court can only sentence in respect of one digital rape, one penile rape and one sexual assault, although the repeated offending will deprive the accused of any mercy that the Court may have extended to him.

[6] The sentencing tariff for rapes of children in Fiji is now well settled. The prevailing authority is the decision of the Supreme Court in AnandAbhay Raj CAV0003 of 21014 (20 August 2014) where the Court set a tariff of 10 to 16 years.

[7] For each of the two counts of rape I take a starting point of 12 years imprisonment. There is present the serious aggravating feature of breach of trust in that he was as a father to her and should have in that role sought to protect her not defile her. For that serious feature I add three years bringing his sentence up to 15 years' imprisonment. In it is also aggravating that he committed these offences in the dead of night, awakening her from sleep to be abused. I add one year to his sentence bringing the total to 16 years. The accused has one previous conviction for a very minor offence in 1999. That conviction is now spent and the Court will ignore it and regard the accused as a first offender. For that mitigation and for the three months he spent in remand, I deduct one year bringing his sentence down to 15 years. That is the sentence he will serve for each of the rape convictions, sentences to be served concurrently.

[8] In the case of Laca HAC 252 of 2011 (Ltk.) this Court set categories of sexual assault and set the tariff at 2 to 10 years with Category One offences being at the top of the range. This offence (contact between mouth and naked genetalia) is a Category One offence and should attract a sentence of 6 to 10 years. The fact that the victim is a child aggravates the offence.

[9] For this representative conviction for sexual assaults I take a starting point of 8 years imprisonment. For his clear record I deduct one year meaning that the accused will serve a sentence of 7 years. This will be served concurrently with the sentences for rape. He will serve a total term of 12 years before he is eligible to be released on parole.

Conclusion

Count 1 : 15 years
Count 2 : 15 years concurrent
Count 3 : 7 years concurrent
Total : 15 years imprisonment.

P.K. Madigan.
Judge

At Suva
13 November, 2015