State v Nasaqia - Sentence [2015] FJHC 978; HAC126.2015 (10 December 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 126 of 2015

STATE

v.

LASARO NAGAQIA

Counsel: Ms. S. Kant with Mr. E. Samisoni for State
Ms. L. Ratidara for Accused

Date of Hearing: 4th and 7th December 2015
Date of Summing Up: 8th December 2015
Date of Judgment: 8th December 2015
Date of Sentence: 10th December 2015

SENTENCE

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

1. Lasaro Nagaqia, you stand convicted of one count of Rape contrary to section 207 (a) and (2) (b) and (3) of the Crimes Decree 2009.
   
2. The victim 'E.S.B.' was 10 years old at the time you raped her. You were 18 years old. You were living in a neighbouring house. You went to the complainant's grandmother's house and went inside the kitchen. When 'E.S.B' came, you pulled from her hand, covered her mouth, put your hand inside her undergarment and touched inside her vagina. It caused pain on her and she was injured.
   
3. The offence of Rape carries a maximum penalty of life imprisonment. Tariff for the offence of Rape of children is 10 – 16 years imprisonment. (Anand Abhay Raj v. State [2014] FJHC 12; CAV0003.2014 (20 August 2012).
   
4. In case of State v. Tauvoli [2011] FJHC 216; HAC 027.2011 (18 April 2011) 18 April 2011) Hon. Justice Madigan observed:
   

"Rape of children is a very serious offence indeed and it seems to be very prevalent in Fiji at the time. The legislation has 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."

In that case the child was 14 years old and the accused was sentenced to 13 years with a non-parole period of 10 years.

5. In case of State v. A.V. [2009] FJHC 24; HAC192.2008 (2 February 2009) Hon Justice Goundar sentencing the accused who raped a 4 year old child said:
   

"Society cannot condone any form of sexual assaults on children. Children are our future. The courts have a positive obligation under the Constitution to protect the vulnerable from any form of violence or sexual abuse. Sexual offenders must be deterred from committing this kind of offences."

In that case the accused was 34 years old who was victim's neighbour and the victim called him grandfather. The accused was sentenced to 12 years imprisonment.

6. I consider the seriousness of the offence and also that the Courts in Fiji have considered deterrent punishment to safeguard the children.
   
7. The aggravating factors in the instant case are, that you caused two injuries on the victim when you raped her. The doctor who examined the victim found one bruise and a tear in the labia minora area. Victim impact statement is also taken into consideration.
   
8. The mitigating factors are that you are 18 years old at the time of the offence and a first offender.
   
9. I take 10 years as the starting point and add 2 years for the aggravating factors and deduct 18 months for the mitigating factors. Now your sentence is 10 years and 6 months. I further deduct 6 months for your period in remand. Therefore the sentence you have to serve is 10 years imprisonment.
   
10. Your non-parole period will be 7 years.
    

Priyantha Fernando
Judge

At Suva
10th December 2015

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