State v Vono - Sentence [2015] FJHC 88; HAC369.2013 (16 February 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 369 of 2013

STATE

v.

NASONI VONO

Counsel: Ms. J Prasad with Ms. S. Navia for State
Ms. M Tarai for Accused

Hearing: 26th, 27th, 30th January, 2nd February 2015
Summing Up: 04th February 2015
Judgment: 10th February 2015
Sentence: 16th February 2015

SENTENCE

[Names of the victims are suppressed. The victim in counts 1-5 will be referred to as L.D. and victim in counts 6-7 will be referred to as M.R.]

1. Nasoni Vono, you have been convicted of the following offences:
   

FIRST COUNT

(Representative Count)

Statement of Offence

RAPE: Contrary to section 207 (1) and (2) (a) and (3) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

NASONI VONO between the 1stday of January 2013 to the 18th day of October 2013 at Nasinu, in the Central Division penetrated the vagina of L.D., a child under the age of 13 years, with his penis.

SECOND COUNT

(Representative Count)

Statement of Offence

RAPE: Contrary to section 207 (1) and (2) (a) and (3) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

NASONI VONO between the 1stday of January 2013 to the 18th day of October 2013 at Nasinu, in the Central Division penetrated the anus of L.D., a child under the age of 13 years, with his penis.

THIRD COUNT

(Representative Count)

Statement of Offence

RAPE: Contrary to section 207 (1) and (2) (c) and (3) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

NASONI VONO between the 1stday of January 2013 to the 18th day of October 2013 at Nasinu, in the Central Division penetrated the mouth of L.D., a child under the age of 13 years, with his penis.

FOURTH COUNT

(Representative Count)

Statement of Offence

RAPE: Contrary to section 207 (1) and (2) (b) and (3) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

NASONI VONO between the 1stday of January 2013 to the 18th day of October 2013 at Nasinu, in the Central Division penetrated the vulva and vagina of L.D., a child under the age of 13 years, with his finger.

FIFTH COUNT

(Representative Count)

Statement of Offence

SEXUAL ASSAULT: Contrary to section 210 (1) (a) and (2) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

NASONI VONO between the 1stday of January 2013 to the 18th day of October 2013 at Nasinu, in the Central Division unlawfully and indecently assaulted L.D.

SIXTH COUNT

(Representative Count)

Statement of Offence

RAPE: Contrary to section 207 (1) and (2) (a) and (3) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

NASONI VONO between the 1stday of January 2013 to the 18th day of October 2013 at Nasinu, in the Central Division penetrated the anus of M.R., a child under the age of 13 years, with his penis.

SEVENTH COUNT

(Representative Count)

Statement of Offence

SEXUAL ASSAULT: Contrary to section 210 (1) (a) and (2) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

NASONI VONO between the 1stday of January 2013 to the 18th day of October 2013 at Nasinu, in the Central Division unlawfully and indecently assaulted M.R.

2. The brief facts were that the two victims L.D. and M.R. are your grandchildren. They were residing with you. In your room you sexual abused them and raped them on different occasions. The two victims L.D. and M.R. were 6 and 7 years of age respectively when you committed these sexual offences on them.
   
3. Maximum penalty for Rape is imprisonment for life. Rape is the most serious sexual offence. Rape of children has become very frequent and common in Fiji. Rape of juvenile girls by elderly family members who are in a position of trust are become more frequent.
   
4. It is a serious aggravating factor that you breached the trust reposed on you when you were expected to look after the 2 grandchildren. Instead you raped them and sexually assaulted them. There is a duty cast upon the court to deter the offenders of this kind who sexually abuse small children from committing such offence and also to protect the small children.
   
5. In Drotini v. The State (2006) FJCA 26; AAU0001.2005 (24 March 2006) the Court observed the following:
   

"There are few more serious aggravating circumstances than where the rape is committed on a juvenile girl by a family member or someone who is in a position of special trust. The seriousness of the offence is exaggerated by the fact that family loyalties and emotions all too often enable the offender or other family members to prevent a complaint going outside the family. If the child then remains in the family home, the rapist often had the opportunity to repeat the offence and to hope for the same protection from the rest of the family."

6. The Court of Appeal confirmed in Anand Abhay Raj [AAU0038 of 2010], that the sentences for rape of children (under 18) should be in the range of 10-16 years. This was approved by the Supreme Court in Anand Abhay Raj (CAV003 of 2014).
   
7. In State v. Mario Tauvoli [2011] FJHC 216, HAC 027.2011 Hon. Justice P Madigan said:
   

"Rape of children is a very serious offence in deed and it seems to be very prevalent in Fiji at the time. The legislation had dictated harsh penalties and the Courts are imposing those penalties in order to reflect society's abhorrence for such crimes. Our nation's children must be protected and they must be allowed to develop to sexual maturity unmolested. Psychologists tell us that the effect of sexual abuse on children in their later development is profound."

8. The aggravating factors are:
   
   1. You breached the trust reposed on you
   2. The age of the victims were 6 and 7 years
   3. You continuously molested the victims for a period of time.
      
9. I also consider the mitigating factors submitted on behalf of you. You are a first offender. You are 71 years old. You were financially supporting your wife. Your medical condition is also considered.
   
10. Considering the above I take 10 years as the starting point for the offence of Rape in Counts 1, 2, 3, 4 and 6. I add 4 years for the aggravating factors and deduct 2 years for the mitigating factors. Now your sentence for rape stands at 12 years per count.
    
11. I further deduct 1 year and 4 months considering your period in remand custody. Now your sentence for each count on rape is 10 years and 8 months. Therefore your sentence for each count of rape, counts 1, 2, 3, 4 and 6 is 10 years 8 months.
    
12. Maximum penalty for sexual assault is 14 years imprisonment. In State v. Laca [2012] FJHC 1414; HAC 252.2011 (14 November 2012), Hon. Justice P. Madigan referring to the United Kingdom's Legal guidelines for Sentencing categorized sexual assault into 3 categories.
    

Category 1 (the most serious)

Contact between the naked genitalia of the offender and naked genitalia face or mouth of the victim.

Category 2

(i) Contact between the naked genitalia of the offender and another part of the victim's body;
(ii) Contact with the genitalia of the victim by the offender using part of his or her body other than the genitalia, or an object;
(iii) Contact between either the clothed genitalia of the offender and the naked genitalia of the victim; or the naked genitalia of the offender and the clothed genitalia of the victim.

Category 3

Contact between parts of the offender's body (other than the genitalia) with part of the victim's body (other than the genitalia).

13. The act of sexual assault on L.D. was, the accused rubbing his penis on her vagina apart from kissing the vagina, and squeezing her breasts. This comes under category 1 above as the accused rubbed his penis on L.D.'s vagina. Therefore on count no. 5 of sexual assault I take 6 years as the starting point. I add 3 years for the aggravating factors and deduct 2 years for the mitigating factors. Now your sentence on count no. 5 is 7 years imprisonment.
    
14. The act of sexual assault on the victim M.R. was, accused touching her vagina which comes under category 2 above. Therefore on count no. 7, I take 4 years as the starting point. I add 3 years for the aggravating factors and deduct 2 years for the mitigating factors. Now your sentence on count no. 7 is 5 years imprisonment.
    
15. Taking the totality principle into consideration I order that all the sentences of imprisonment in counts no. 1-7 to run concurrently.
    
16. You are the grandfather of the 2 victims L.D. and M.R. Therefore I identify L.D. and M.R. as protected persons and a permanent Domestic Violence Restraining Order is made. You are ordered not to have any contact with the victims L.D. and M.R. unless with the permission of Court.
    

Summary

17. You are sentenced to 10 years and 8 months imprisonment. You are not eligible for parole until you serve a minimum of 8 years imprisonment. You have 30 days to appeal to Fiji Court of Appeal.
    

Domestic Violence Restraining Order is made as per paragraph 16.

Priyantha Fernando
Judge
Solicitors

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