State v Qoro [2016] FJHC 258; HAC193B.2015 (11 April 2016)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 193B OF 2015

STATE

V

PONIPATE QORO

Counsel : Ms. S. Kiran for the State
Ms. S. Nasedra for the Accused

Date of Sentence : 11thApril, 2016
(Name of the victim is suppressed. She is referred to as RL)

SENTENCE

[1]. Mr. PONIPATE QORO (Accused) tendered an unequivocal 'plea of guilty' on 19th February, 2016to the following counts when he was represented by a Counsel.

COUNT 1
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

PONIPATE QORO between the 27th day of November 2015 and 28th day of November 2015 at Lautoka in the Western Division inserted his finger into the vagina of RL, a 6 year old girl.

COUNT 2
Statement of Offence

RAPE: Contrary to section 207 (1) and (2) (a) and (3) of the Crimes Decree 2009.

Particulars of Offence

PONIPATE QORO between the 27th day of November 2015 and 28th day of November 2015 at Lautoka in the Western Division had carnal knowledge of RL, a 6 year old girl.

[2]. Accused was explained the consequence of the guilty plea, the tariff range of the sentence. Having understood what I explained, Accused maintained his plea of guilt. Court accepted the plea after being satisfied that it was unequivocal, voluntary and free from any influence.

[3]. On 15th March 2016, Accused agreed the relevant summary of facts filed and read by the State. Court found the two counts of Rape proved on the facts agreed by the Accused. He was convicted on both Rape counts accordingly. He now comes before this Court for sentence on the conviction.

[4]. The summary of facts filed by the State was that:

The victim, RL is a 6 year old girl [at the time of incident], born on the 1st of January 2009; she has been residing with her grandmother Reveka Lewatu Senior since birth. Her mother, Anasemaca Bulou has been in a de-facto relationship with the accused Ponipate Qoro since she was pregnant with the victim hence she is the accused's step daughter.

On the 27th of November 2015, the victim with her sister, Anasimeci Lewaseni was playing at Mere's house, their neighbor. Reveka Lewatu Senior was in Nadi attending a funeral.

The accused who was residing in Nawaicoba, Nadi with his wife came to Reveka Lewatu Senior's place alone. Upon arriving home, he called Peni Navunicagi a 12 year old boy to call both girls from Mere's house. Peni Navunicagi resides and is looked after by Reveka Lewatu Senior. The two girls, Peni and another were being looked after by Siteri Naka in the absence of Reveka Lewatu Senior.

When the victim came home, she saw the accused in the house. He closed the windows and switched off the lights in the house. She went to sleep on the bed which was in the sitting room. After a while, the accused came and slept beside her

She then felt the accused removing her trousers and inserting his finger into her "kulu" meaning vagina – she cried out for her grandmother in pain but the accused blocked her mouth with his hand whilst at the same time inserted his "kulu" meaning penis into her vagina. She states that it was very painful for her. The accused then covered them with the bed sheet.

Peni Navunicagi who had again gone to call Anasimeci, as told by the accused had also returned home after she refused to come but upon arriving home he found the door locked and lights off. He knocked but there was no response so he went to the window of the sitting room where he could hear the sound of the spring in the bed. He also heard the victim's voice saying "kua, kua" meaning "don't, don't". He also heard his uncle, the accused voice saying "tikolo" meaning keep quite. Peni again went to the door but it remained closed so he went to Mere's house to sleep.

Siteri Naka who had earlier in the evening gone out had returned home at around 1.30 am and saw the accused was sleeping in the sitting room with the victim.

The victim woke up the next morning and found the accused gone. She felt weak and also saw blood coming from her "kulu" meaning vagina. When Siteri Naka came to wake her up, she was crying and said she has headache.

Reveka Lewatu Senior in the morning of the 28th of November 2015 returned home and also noticed that victim was weak. She saw blood on the front of her shorts but at that time thought she is having diarrhea so she took her to the bathroom. After the shower, she told the victim to sleep and went to sleep herself. Meanwhile, Siteri Naka saw blood on the bed sheet which was folded and covered with a blanket and on the mattress. Photo's attached and marked PQ1.

Reveka Lewatu Senior was woken up to by the victim crying. She asked her what happened when she told her of what the accused did to her. The matter was reported at the Lautoka Police Station and then Reveka Lewatu Senior took victim to the hospital where she was admitted at the Children's Ward.

According to her medical report, the doctor notes that she was very scared when she came to the hospital. Lacerations were noted at 7 o'clock and 3 o'clock position as well as at 6 o'clock position at fourchette. The doctor further noted that there was extensive tear and laceration at the fourchette and fossa navicularis area with tear extending to involve proximal anal canal approximately 4cm. PW1 required examination and repair of laceration in operating theatre under anaesthesia. Attached and marked PQ2 is a copy of the medical report.

The accused was arrested 8 days later and interviewed under caution where he voluntarily admitted calling the victim and then removing her clothes before "raping" her. He also admitted to closing her mouth whilst doing it. He further stated that he had asked forgiveness from his wife and his parents for what he did. Attached and marked PQ3 is a copy of the caution interview.

Subsequently, he was charged with rape contrary to section 207 of the Crimes Decree, No. 44 of 2009. Accused voluntarily made a statement after being charged that he has reconciled with his family and he admits committing the offence and is also sorry for his action. Attached and marked PQ4 is a copy of the charge statement.

The accused has 20 previous convictions of which 9 are active. Attached and marked PQ5 is a copy of the previous convictions.

Maximum Sentence

[5]. The maximum penalty for Rape is life imprisonment.

Tariff for Rape

[6]. It is now well settled, and confirmed by the Supreme Court in Anand Abhay Raj CAV003.2014 that the tariff for rape of a juvenile is 10-16 years' imprisonment.

Starting Point

[7]. Rape is a serious crime. By prescribing life imprisonment for Rape convicts, the law makers expect Courts to impose harsher punishment on such offenders. In State v Tauvoli [2011] FJHC 216; HAC027.2011 (18 April 2011) Madigan J 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".

[8]. In State vAV [2009] FJHC 24; HAC 192 21.02.2009 it was stated that:

"rape is the most serious form of sexual assault.... Society cannot condone any form of sexual assault on children...Sexual offenders"

[9]. Not only the offender himself but also the potential offenders must be deterred. The sentence must send a clear warning to the society. The offender must be severely punished and be incarcerated to ensure that our younger generation is safe and secure.

[10]. In the case of Mohammed Kasim v State [1994] FJCA 25;AAU 0021j.93S (27 May 1994) it was stated that;

"It must be recognized by the Courts that the crime of Rape has become altogether too frequent and that the sentences imposed by the Courts for that crime must more nearly reflect the understandable public outrage. We must stress, however, that the particular circumstances of a case will mean that there are cases where the proper sentence may be substantially higher or substantially lower than that starting point".

[11]. Having considered the gravity of the offence, culpability of the offending and its impact on the child victim, I pick twelve (12) years as the starting point for each Rape count.

Aggravating Circumstances

[12]. The Accused was the step father of the victim at the time of the offending. Victim's mother was in a de facto relationship with him .He breached the trust and exploited victim's vulnerability.

[13]. The age gap between them is more than twenty five years. In principle, the younger the child and the greater the age gap between the offender and the victim, the higher the sentence should be.

[14]. Accused used his authority over the victim and used violence to instill fear in the victim. Rape of step daughter is no doubt a domestic violence under the Domestic violence Decree.

[15]. According to the Victim Impact Statement and the medical report filed, victim has suffered physically and psychologically. She suffered injuries and lost her virginity at very young age. Offending left a scar and trauma for the rest of her life.

Mitigating Circumstances

[16]. Accused cooperated with police. According to the mitigation submission, He is 34 and sole bread winner of the family earning $ 100 per week as a cane cutter.

[17]. He showed genuine remorse by admitting the offence to the police and pleaded guilty at the first reasonable opportunity. He not only saved the court time and the resources but relieved the complainant from giving evidence.

In Taqa v State [ 2009] FJCA 11; AAU0042.2007 (26 June 2009) it was observed:

"Our second concern is the amount of credit given to the compelling mitigating factors present in this case. The appellant showed genuine remorse by admitting the offence to the police and by pleading guilty at the first reasonable opportunity. He not only saved the court time and the resources but relieved the complainant from giving evidence of sexual nature which would have been a distasteful experience for her. The appellant was a person of previous good character and came from a disadvantaged background. We take the view that the discount of two years did not sufficiently account for these mitigating factors"....

...We bear in mind that different judges may give different weight to the mitigating factors and that this Court should be slow to intervene in a sentence on the ground of insufficient weight given by the sentencing court to the various mitigating factors, we nevertheless, are satisfied that this is a case where our intervention is justified. Rape cases pose an inherent difficulty in its prosecution because of the nature of evidence that the complainant has to recollect and testify. When an accused pleads guilty, substantial discount should be given for relieving the complainant from giving evidence of sexual nature".

[18]. Accused has nine previous convictions during the period of past ten years. Those convictions have nothing to do with sexual offences. However, I am not inclined to give any discount on his good character.

[19]. Accused's father has tendered a letter and said that he approached the mother of the victim and the victim herself and tendered apology to them. He had sought forgiveness on accused's behalf. According to him, they had accepted his apology and given forgiveness. I am not inclined to give any discount on that account. Even the Church in Fiji no longer tolerates the practice of traditional apologies or 'bulubulu' in respect of grave crimes like sexual offences.

Sentence for Rape Count

[20]. I add three (3) years to the starting point for above mentioned aggravating factors bringing the interim sentence to fifteen (15) years' imprisonment. I deduct three year for the above mentioned mitigating factors bringing the sentence for each Rape count to twelve(12) years' imprisonment.

[21]. Accused was in remand for a period of nearly four months. Thus a period of four (4) months is deducted from the sentence. Now the final sentence for each Rape count is eleven (11) years and eight (08) months imprisonment. Sentence is made concurrent to each other.

[22]. Considering Section 18 (1) of the Sentencing and Penalties Decree non parole period of nine (09) years is imposed.

[23]. 30 days to appeal to the Fiji Court of Appeal.

Aruna Aluthge
Judge

At Lautoka
11th April, 2016

Counsel:

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