State v Laveta - Sentence [2016] FJHC 569; HAC002.2016 (23 June 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No. HAC 002 of 2016

STATE

V

WAISALE ROVA LAVETA

Counsels : Mr. M. Vosawale for the State
: Mr. M. Yunus for the Accused

Dates of Trial : 14, 15, 16 June, 2016
Date of Summing Up : 20 June, 2016
Date of Judgment : 21 June, 2016
Sentence Hearing : 22 June, 2016
Date of Sentence : 23 June, 2016

SENTENCE

(The name of the complainant is suppressed; the complainant will be referred to as “SS”)

1. In a judgment delivered on 21 June, 2016 the court found the accused guilty and convicted himon both counts in the following information:
   

COUNT ONE

Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (b) of the Crimes Decree No.

44 of 2009.

Particulars of Offence

WAISALE ROVA LAVETA on the 4^th day of December 2015, at Suva in the Central Division, penetrated the vagina of “SS” with his fingers without her consent.

COUNT TWO

Statement of Offence

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

Particulars of Offence

WAISALE ROVA LAVETA on the 4^th day of December 2015, at Suva in the Central Division, unlawfully and indecently assaulted “SS” by touching her breast.

2. The brief facts were as follows:
   

[a] The victim who was 15 years of age and a Form 4 student came to Suva from Kadavu to spend her school holidays. In Suva she was staying at her grandmother’s house at Vatuwaqa. The accused was also staying in that house with his aunty (victim’s grandmother) and her family.

[b] On 4^th December 2015, the accused who was once married to the elder sister of the victim, approached the victim and told her that he wanted to talk to her about her sister. The accused suggested that they go to the bathroom to talk.

[c] The victim noticed that the accused was drunk. When they entered the bathroom the accused drew the bathroom curtain he told the victim that he did not like how her father had taken away her sister from him.

[d] Thereafter he started to touch her breasts, then her vagina and he kissed her lips. He used his left hand to touch her breasts by sliding his hand from under her clothes; with his right hand he was closing her mouth so that she does not shout.

[e] The accused had locked the door of the bathroom pushed her against the bathroom wall, pulled up her skirt and touched her vagina. The accused moved closer to her as she tried to resist him. At this time she felt his three fingers going inside her vagina. The victim did not consent to the accused touching her breasts or inserting his three fingers into her vagina.

[f] On the same day, the matter was reported at the Nabua Police Station and the victim was examined by a Doctor at the CWM Hospital.

[g] The Doctor testified that in her professional opinionthere were fresh injuries to the external genatalia being abrasion and contusion which appears to have been sustained within the last few hours that is two to three hours before she was brought to the hospital. Therewas a fresh abrasion in towards the hymen and a fresh contusion on the opening of the vagina. The Doctor further said that forceful penetration into the vagina could not be ruled out.

3. Both counsels have assisted the court by written and oral submissions in support which is appreciated by the court.
   
4. Counsel for the accused presented the following personal details and mitigation on behalf of the accused:
   
   • (a) The accused was 32 years of age at the time of the offending, was in a defacto relationship with the victim’s sister but separated since 2011. He has a child from the relationship who is 5 years of age. The accused has not married anybody since 2011. The accused is a secondary school teacher of 9 years who teaches the subject technical drawing. He is currently teaching atNasinu Muslim College and has been in this school for the last 5 years. He holds a Diploma in Education.
     
   • (b) His elderly parents who lived in Kadavu are dependent on him for their daily survival. He also supports his younger sister and his own daughter. The accused is a first offender with no adverse police records, the accused has a good standing in the society and that the accused’s action lacked pre-meditation.
     
   • (c) The learned counsel further states that the accused has co-operated with the police during his arrest and have also “technically” confessed to the offending. Counsel further submits that since the accused was separated from his defacto partner in 2011 who was the elder sister of the victim, there is no domestic relationship between the accused and the victim.
     
   • (d) Finally counsel for the accused says the accused is “sympathetic” of his acts and asks for forgiveness of the court and its leniency and mercy while sentencing him. He promises this court that he will not re-offend.
     
5. The learned defence counsel also urges upon the court not to impose a non-parole period so that the accused may with the approval of the Commissioner of Corrections Service be given one third remission on his head sentence as per section 27 (2) of the Prisons and Corrections Act 2006.This, counsel suggests will allow the accused an opportunity to enter into the scheme for early release whereby the accused maybe allowed to continue his career as a teacher because the offending had nothing to do with the profession. Counsel further says the aim of the early release program is to assist in the rehabilitation of the prisoners and to provide an opportunity for prisoners to re-enter society by the performance of community work or paid employment or enrolment in a course of education or instruction as per section 46 (1) of the Prisons and Corrections Act 2006.
   
6. The State Counsel submits that the accused committed the acts on the victim who was spending her school holidays at the house where the accused was residing. The accused took advantage of the victim’s vulnerability while the victim was alone inside the house. The accused took the victim to the bathroom since he knew the victim was defenceless at the time and he committed the offences. By forcing himself unto the victim and digitally raping and sexually assaulting her. He further submits that the accused portrayed himself as a “caring person” but took advantage of the victim whilst he was alone with her inside the bathroom.
   
7. The State Counsel strongly argues against the non fixture of non- parole period by stating that the offences committed against the victim is very serious and it will give a wrong signal to the community. Counsel refers to the case of State vs. Ken Singh, criminal case no. HAC 53 of 2014where his Lordship Justice Madigan in sentencing the accused to 15 years imprisonment with a non-parole period of 10 years for the digital rape of his 15 year niece stated at paragraph 10 as follows:
   

“At the present time the citizens of Fiji are disturbed if not angry about the prevalence of sexual assaults, and in particular the assaults and rapes of the nation’s children and calls have been made for harsher penalties.”

8. Section 18 (1) and (2) of the Sentencing and PenaltiesDecree states:
   
   • (1) Subject to sub-section (2), when a court sentences an offender to be imprisoned for life or for a term of 2 years or more the court must fix a period during which the offender is not eligible to be released on parole.
     
   • (2) If a court considers that the nature of the offence, or the past history of the offender, make the fixing of a non-parole period inappropriate, the court may decline to fix a non-parole period under sub-section (1).
     
9. Section 18 (1) makes it mandatory for a court when sentencing an offender to a term of two years or more to fix a non-parole period unless for the limited reasons provided by subsection (2) the court declines to fix one (see RusiateSavu vs. The State criminal appeal no. AAU0090 of 2012).
   
10. The limited reasons stated in section 18 (2) are the nature of the offence or the past history of the offender. There is no doubt that the offences committed by the accused are serious for rape the maximum sentence is life imprisonment and for sexual assault the maximum sentence is 10 years imprisonment both offences were committed on a 15 year child who had come for school holidays and was staying in the same house as the accused as a family member.
    
11. In respect of the past history of the offender I note that he was 32 years of age at the time of the offending, a school teacher who has no previous convictions and is a person of good standing in the society.
    
12. I have carefully considered the submissions of both counsels I am not convinced that this is a case where the court’s discretion in declining to fix a non-parole period is appropriate. The offences committed by the accused are serious which warrants a non-parole periodto be imposed. The purpose of the non-parole period is to ensure that the term imposed mustbe served before any entitlement to remission can be taken into account (see Elia Manoa vs. State [2014] AAU60/10, 25 September, 2014 at [15]).
    
13. Furthermore, it is quite preposterous of the accused to believe that without a non-parole period he will be able to get an early release from the Commissioner of Corrections Service. An early release by the Commissioner is subject to the good behaviour of a prisoner which may be forfeited and restored in accordance with the Commissioner’s orders (section 28 (1) *Corrections Service Act 2006).
    
14. There have been instances where prisoners have been engaged in programs of education, rehabilitation or instructions whilst at the Correction Centre. I don’t see any reason why these programs cannot be effectively used by the accused.
    
15. In view of the above I am inclined to impose a non-parole period in this case which is appropriate considering the nature of the offences committed by the accused and his past history.
    
16. The State mentions the following aggravating factors:
    
    • (i) breach of trust as the brother in-law of the victim;
    • (ii) taking advantage of complainant’s vulnerability at the material time;
    • (iii) the age disparity at the time between the 15 year victim and the 32 year accused.
      
17. The Court takes the following factors as aggravating features in this case;
    
    • (a) the victim was 15 years of age whereas the accused was 32 years of age. There is a substantial age difference between the two;
      
    • (b) pre-meditation in deceptively luring the victim into the bathroom on the pretext of sharing with her something about her elder sister;
      
    • (c) breach of trust since the victim was a family member who trusted the accused by voluntarily going into the bathroom with the accused;
      
    • (d) causing injuries to the external genatalia of the victim.
      
18. The Court takes the following factors as mitigating features in this case;
    
    • (a) Accused is a first offender;
      
    • (b) His elderly parents who live in Kadavu are dependent on him for their daily survival. He also supports his younger sister and his own daughter. The accused has a good standing in the society;
      
    • (c) The accused co-operated with the police.
      
19. Conviction for the offence of rape carries a maximum penalty of life imprisonment. The Supreme Court of Fiji in the decision of AnandAbhay Raj vs.The State, CAV 0003 of 2014 has confirmed that the tariff for the rape of a juvenile is now a sentence between 10 years to 16 years imprisonment.
    
20. Conviction for the offence of sexual assault carries a maximum sentence of 10 years imprisonment. In State –vs.- EpeliRatabacacaLacacriminal case number HAC 252 of 2011 this Court had set a tariff for the offence of sexual assault as a sentence between 2 years to 8 years imprisonment with serious offending attracting the higher end of the scale while the minor offending attracting the lower end of the scale.
    
21. Sexual offences involving young children continue to be on the rise. It is the duty of the court to protect young children and that is the reason why the law makers have imposed life imprisonment as the maximum sentence for the offence of rape. A deterrent sentence is appropriate in the circumstances of the offending committed by the accused.
    
22. Mr. Laveta as a school teacher you have brought shame to the noble profession of teachers. The victim came to Suva to enjoy her school holidays only to find it shattered by you. You brought discomfort to the victim. As a matured adult, twice the age of the victim, you should have been more responsible towards the victim.
    
23. Section 17 of the Sentencing and Penalties Decree states:
    

“If an offender is convicted of more than one offence founded on the same facts, or which form a series of offences of the same or a similar character, the Court may impose an aggregate sentence of imprisonment in respect of those offences that does not exceed the total effective period of imprisonment that could be imposed if the Court had imposed a separate term of imprisonment for each of them.”

24. I am satisfied that the two offences for which the accused stands convicted are offences founded on the same facts and are of similar character. Therefore taking into account section 17 of the Sentencing and Penalties DecreeI prefer to impose an aggregate sentence of imprisonment for the two offences.
    
25. I take10 years imprisonment as the starting point of your aggregate sentence. I add 5 years for the aggravating factors, bringing an interim total of 15 years imprisonment. For the mitigating factors, I reduce the sentence by 3 years.
    
26. The sentence is now 12 years imprisonment. Counsel for the accused has indicated that there is no issue about the accused’s remand. The final sentence is 12 yearsimprisonment.
    
27. Under the aggregate sentencing regime of section 17 of the Sentencing and Penalties Decree the head sentence of imprisonment for the two offences of rape and sexual assault is 12 years imprisonment.
    
28. Having considered the purpose of this sentence to be just in all the circumstances of this case and an opportunity for rehabilitation of the accused under section 18 (1) of the Sentencing and Penalties Decree, I impose 8 years and 6 months of imprisonment as a non-parole period to be served before the accused is eligible for parole. I consider this non-parole period to be appropriate in the circumstances of this case.
    
29. I note that the sentence does not exceed the total term of 12 years imprisonment which I would have otherwise imposed for the offence of rape (with the offence of sexual assault being concurrent). Accordingly, I am satisfied that the term of 12 years imprisonment does not exceed the total effective period of imprisonment that could be imposed if the court had imposed a separate term of imprisonment for each offence.
    
30. In summary I pass an aggregate sentence of 12 years imprisonment with a non-parole period of 8 years and 6 months to be served before being eligible for parole.
    
31. 30 days to appeal to the Court of Appeal.
    

Sunil Sharma

Judge

At Suva
23 June, 2016

Solicitors

Office of the Director of Public Prosecutions for the State

Office of the Legal Aid Commission for the Accused

*The Prisons and Corrections (Amendment) Decree 2011 (Decree No. 11 of 2011) has amended the Prisons and Corrections Act 2006 to Corrections Service Act 2006.