State v Delailakeba - Sentence [2016] FJHC 485; HAC109.2014 (13 May 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 109 of 2014

STATE

v.

JIONE VAKATALAI DELAILAKEBA

Counsel : Ms. L. Bogitini for State
Ms. L. Raisua for Accused

Date of Hearing : 02^nd, 03^rd May 2016
Date of Summing Up : 06^th May 2016
Date of Judgment : 09^th May 2016
Date of Sentence : 13^th May 2016

_____________________________________________________________________
SENTENCE

__________________________________________________________________________________

[Name of the victim is suppressed. The victim will be referred to as M.D.]

1. Jione Vakatalai Delailakeba, you stand convicted for one count of Sexual Assault and 3 counts of Rape.

FIRST COUNT

[Representative Count]

Statement of Offence (a)

SEXUAL ASSAULT: Contrary to section 210 (1) (a) of the Crimes Decree 44 of 2009.

Particulars of Offence

JIONE VAKATALAI DELAILAKEBA between the 1^st day of March 2011 and the 31^st day of December 2011 at Nabua in the Central Division unlawfully and indecently assaulted ‘M.D.’, a 9 year old girl, by touching and licking her vagina.

SECOND COUNT

[Representative Count]

Statement of Offence (a)

RAPE: Contrary to section 207 (1) and (2) (b) and (3) of the Crimes Decree 44 of 2009

Particulars of Offence (b)

JIONE VAKATALAI DELAILAKEBA between the 1^st day of January 2012 and the 31^st day of December 2012 at Nabua in the Central Division penetrated the vagina of ‘M.D.’ a child under the age of 13 years, with his finger.

THIRD COUNT

[Representative Count]

Statement of Offence (a)

RAPE: Contrary to section 207 (1) and (2) (a) and (3) of the Crimes Decree 44 of 2009

Particulars of Offence

JIONE VAKATALAI DELAILAKEBA between the 1^st day of January 2013 and the 30^th day of September 2013 at Nabua in the Central Division had carnal knowledge of ‘M.D.’, a child under the age of 13 years.

FOURTH COUNT

Statement of Offence (a)

RAPE: Contrary to section 207 (1) and (2) (b) and (3) of the Crimes Decree 44 of 2009.

Particulars of Offence

JIONE VAKATALAI DELAILAKEBA between 1^st day of October 2013 and the 31^st day of October 2013 at Nabua in the Central Division penetrated the vagina of ‘M.D.’, a child under the age of 13 years, with his finger.

2. The complainant is your daughter and you were her guardian since you divorced your wife in 2008. Complainant was 9 year old when you started molesting her. You touched her vagina, licked her vagina, poked your penis and finger into her vagina. Taking advantage of her vulnerability you committed those sexual acts repeatedly on her.
   
3. The maximum punishment prescribed for sexual assault is 10 years imprisonment. Deciding on tariff for the Sexual Assault offence, Hon. Justice Madigan in State v. Khaiyum [2012] FJHC 1274; Criminal Case 160.2010 (10 August 2012) said.
   

“The offence of sexual assault has a maximum term of ten years. No tariff has yet been set for this new offence, but given that the summary offence of indecent assault has a maximum penalty of five years with a tariff of one to four years (Ratu Penioni Rakoto HAA 68 of 2002), the tariff for this more serious offence with double the penalty should be in the range of two to eight years”

4. The aggravating factors are that you breached the trust reposed on you by the complainant as the guardian. You took advantage of her vulnerability. You were 54 years old and she was 9 years old when you started molesting her. Contents of the Victim Impact Assessment report are also considered.
   
5. The mitigating factors are that you are a first offender, your personal details submitted are also taken into consideration.
   
6. For the 1^st count of Sexual Assault, I take 3 years as the starting point. I add 2 years for the aggravating factors and deduct 1 year for the mitigating factors. Now your sentence for count no. 1 is 4 years imprisonment.
   
7. The maximum punishment for Rape is imprisonment for life. The tariff for rape of a child under 18 years of age is 10 – 16 years. Raj v. State FJCA 18; AAU0038.2010 (5 March 2014).
   
8. Aggravating and the mitigating factors are the same as above.
   
9. I take 12 years as the starting point for each count of Rape in counts 2 – 4. I add 4 years for the aggravating factors and deduct 2 years for the mitigating factors.
   
10. Now your sentence on each count of Rape in counts 2, 3 and 4 is 14 years imprisonment. Your non-parole period will be 12 years.
    
11. You have been in remand for 2 years one month and 7 days. I further deduct 2 years and 2 months for your period in remand.
    
12. Now your Head sentence on each count of Rape is 11 years and 10 months. Your non-parole period will be 9 years and 10 months.
    
13. Final sentence that you have to serve:
    

For Sexual Assault in Count No. 1 – 4 years imprisonment.

For Rape in Count No. 2 – 11 years and 10 months

imprisonment.

For Rape in Count No. 3 – 11 years and 10 months

imprisonment.

For Rape in Count No. 4 – 11 years and 10 months

imprisonment.

Sentences in counts 1 – 4 are to run concurrently. Your non-parole period will be 9 years and 10 months.

Priyantha Fernando

Judge

At Suva
13^th May 2016

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