State v AB - Sentence [2016] FJHC 61; HAC181.2011 (8 February 2016)

IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA

CRIMINAL CASE: HAC 181 OF 2011

BETWEEN :

STATE

AND :

AB

Counsel : Mr. Niudamu for State
Mrs. Narara for the Accused

Date of Hearing : 3rd of February 2016
Date of Summing up : 4th of February 2016
Date of Judgment : 5th of February 2016
Date of Sentence : 8th of February 2016

SENTENCE

1. The names of the victim and the accused are suppressed.
   
2. You stand convicted for one count of Rape contrary to Section 207 (1) and (2) (b) of the Crimes Decree, which carries a maximum penalty of life imprisonment.
   
3. Subsequent to the hearing of this charge and the unanimous verdict of guilt by the three assessors, the court found you guilty and convicted for this offence of rape.
   
4. It was revealed during the course of the hearing, that you have inserted the vagina of the victim with your finger while she was sleeping. You are the uncle of the victim. You and the victim together with other family members lived in a small house, which had no separate rooms. You slept on the sofa while the victim was sleeping on the bed with her mother on that particular night. The sofa and the bed were joined together. You started to touch her body and then inserted into her vagina with your finger while she was sleeping. You told her not to tell anyone, otherwise there will be a lot of problems.
   
5. This is a case of an elderly family member, using a juvenile within the domestic family environment for his surrogate sexual gratification. Crimes in this nature have been condemned and deprecated by many societies as it is not only against the acceptable social norms and values, but also against the acceptable human behaviours. Abusing of children for sexual gratification by elderly family members within the domestic family environment has now become a grave social and cultural concern, which need to address promptly and effectively.
   
6. Having considered the serious nature of this offence, I now turn my attention to consider the purpose of this sentence. The main purpose of this sentence is founded on the principle of deterrence. It is a responsibility of the court to deter offenders or other persons from committing offences of the same or similar nature and protect the community from offenders of this nature. A harsh and long custodial sentence is inevitable for the offences of this nature in order to demonstrate the gravity of the offence and also reflect that the civilised society denounce such crimes without any reservation.
   
7. Hon. Chief Justice Gates in Anand Abhay Raj (Special leave to appeal No. CAV003 of 2014) held that the tariff for rape of a child is between 10 -16 years' imprisonment period.
   
8. In Felix Ram v State [2015] FJSC 26; CAV12.2015 (23 October 2015) the Supreme Court of Fiji has set out the factors to be considered in rape cases in an inclusive manner, where their Lordships held that;
   

i) whether the crime had been planned, or whether it was incidental or opportunistic,

ii) whether there had been a breach of trust

iii) whether committed alone;

iv) whether alcohol or drugs had been used to condition the victim;

v) whether the victim was disabled, mentally or physically, or was specially vulnerable as a child

vi) whether the impact on the victim had been severe, traumatic, or continuing;

vii) whether actual violence had been inflicted;

viii) whether injuries or pain had been caused and if so how serious, and were they potentially capable of giving rise to STD infections;

ix) whether the method of penetration was dangerous or especially abhorrent;

x) whether there had been a forced entry to a residence where the victim was present;

xi) whether the incident was sustained over a long period such as several hours

xii) whether the incident had been especially degrading or humiliating;

xiii) If a plea of guilty was tendered, how early had it been given. No discount for plea after victim had to go into the witness box and be cross-examined. Little discount, if at start of trial;

xiv) Time spent in custody on remand.

xv) Extent of remorse and an evaluation of its genuineness;

xvi) If other counts or if serving another sentence, totality of appropriate sentence.

9. You are the maternal uncle of the victim and held a respected and trusted position in her life. There is no specific finding of any psychological and physical impact on the victim due to this incident. However, the court must give a real consideration to the overall circumstance of the incident and how it has harmfully affected the victim.

10. Having considered the level of harm on the victim and the level of culpability of the accused, I select 12 years as the starting point.

11. You have committed this offence while she was sleeping with her mother. It is natural that children feel more secure and safe around their parent. However, you have invaded that zone of comfort and safety of this child and committed this offence, while her mother was sleeping just next to her. You took an advantage of her naivety and vulnerability. The victim was almost 12 years of age and you were 26 years old at the time of this offence was committed. You have threatened her not to tell anyone. I consider these reasons as aggravating factors of this offence.

12. I now turn onto the mitigatory factors. You are 31 old and single. You are a first offender. I consider these factors as mitigating factors in your favour.

13. Having considered the above discussed aggravating factors, I increase three (3) years to reach fifteen (15) years of interim imprisonment. In view of the mitigating factors, I reduce one (1) year to reach the final sentence of fourteen (14) years of imprisonment.

14. Having considered the main purpose of this sentence which is principle of deference and the principle of rehabilitation, I find 12 years of non-parole period would appropriately served the said purpose pursuant to Section 18 (1) of the Sentencing and Penalties Decree.

15. Accordingly, I sentence you for a period of fourteen years (14) of imprisonment for the offence of Rape contrary to Section 207 (1) and (2) (b) of the Crimes Degree. Furthermore, I order that you are not eligible for parole for a period of 12 years.

16. Since this incident involves with domestic violence, I am satisfied that there are sufficient grounds to consider making an order under the Domestic Violence Decree. I accordingly make a permanent domestic violence restraining order against the accused person with standard non molestation conditions and no contact conditions pursuant to section 24 and 28 of the Domestic Violence Decree. The above domestic violence restraining order will be in force until this court or any other competence court is varied or suspended it. Furthermore, if you breached this restraining order, you will be charged and prosecuted for an offence pursuant of section 77 of the Domestic Violence Decree.

17. Thirty (30) days to appeal to the Fiji Court of Appeal.

R. D. R. Thushara Rajasinghe
Judge
At Lautoka
8th of February 2016

Solicitors : Office of the Director of Public Prosecutions
Office of Legal Aid Commission