State v Vosaicake [2016] FJHC 621; HAC324.2014 (12 July 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
[CRIMINAL JURISDICTION]

CRIMINAL CASE NO: HAC. 324 OF 2014

STATE

V

TOMASI VOSAICAKE

Counsel : Ms. D. Kumar for State
Ms. L. Ratidara for the Accused
Dates of Hearing : 06^th - 08^th July 2016
Date of Summing Up : 11^th July 2016
Date of Judgment : 11^th July 2016

Date of Sentence : 12^th July 2016
(The name of the complainant is suppressed. The complainant will be referred to as SG)

SENTENCE

1. Tomasi Vosaicake, after trial, you stand convicted of the offence of rape contrary to section 207(1) of the Crimes Decree No. 44 of 2009 (“Crimes Decree”) and for the offence of sexual assault contrary to section 210(1) of the Crimes Decree.
   
2. You were charged with the following offences;

FIRST COUNT

Representative Count

Statement of offence

Rape: Contrary to Section 207 (1) & (2)(c) & (3) of the Crimes Decree No. 44 of 2009.

Particulars of offence

TOMASI VOSAICAKE between the 1^st January 2014 and 26^th November

2014 at Suva in the Central Division, penetrated the mouth of a girl, namely,

SG, a 7 year old girl, with his penis.

SECOND COUNT

Representative Count

Statement of offence

Attempted Rape: Contrary to Section 208 of the Crimes Decree No. 44 of

2009.

Particulars of offence (b)

TOMASI VOSAICAKE between the 1^st January 2014 and 26^th November

2014 at Suva in the Central Division, attempted to have carnal knowledge of a girl, namely, SG.

THIRD COUNT

Representative Count

Statement of offence

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

Particulars of offence (b)

TOMASI VOSAICAKE between the 1^st January 2014 and 26^th November

2014 at Suva in the Central Division, unlawfully and indecently assaulted SG, by licking her vagina.

3. Two assessors opined that you are guilty of all the above counts and one assessor found you not guilty of all counts. This court concurred with the majority opinion of the assessors in respect of the first count and the third count and convicted you accordingly. The court found you not guilty of the second count.
   
4. The complainant in this case is your granddaughter. During the period between 01/01/14 and 26/11/14, you and the complainant lived in the same house along with other family members. You and your wife had the responsibility of looking after the children who lived in that house including the complainant who was 7 years old. During that period, you penetrated the complainant’s mouth with your penis. Again on another occasion, you licked the complainant’s vagina inside the bathroom.
   
5. You chose your 7 year old granddaughter as your victim to gratify your disgraceful lust. As the grandfather, you had a different role to play in the victim’s life. Your role should have been to look after her, protect her from the evils of the world and to guide her on the correct path by your words and your deeds. But you yourself gave your granddaughter an awful experience that would have undoubtedly seared into her childhood memories leaving a permanent scar.
   
6. The maximum sentence for the offence of rape under section 207(1) of the Crimes Decree 2009 (“Crimes Decree”) is imprisonment for life and the sentencing tariff for rape of a child is a term of imprisonment between 10 to 16 years (Anand Abhay Raj v State [2014] FJSC 12; CAV 003 of 2014).
   
7. The offence of sexual assault under section 210(1) of the Crimes Decree carries a maximum sentence of 10 years imprisonment. Following the case of State v Laca [2012] FJHC 1414; HAC 252 of 2011 (14 November 2012), this court has been applying an imprisonment term between 2 to 8 years as the tariff for sexual assault.
   
8. The two offences you are convicted of are offences of similar character. Therefore, in view of the provisions of section 17 of the Sentencing and Penalties Decree 2009 (“Sentencing and Penalties Decree”), I consider it appropriate to impose an aggregate sentence of imprisonment for the first and the third counts. Section 17 of the Sentencing and Penalties Decree reads thus;

“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.”

9. I take 11 years imprisonment as the starting point of your aggregate sentence for the first and the third counts.
   
10. I consider the following as aggravating factors;
    1. you are victim’s grandfather and the head of the house in which the offence was committed. There is a breach of trust;
    2. age gap between you and the victim is 57 years; and
    100. you took advantage of the victims vulnerability.
         
11. I add 05 years to your sentence to reflect the above aggravating factors. Now your sentence is 16 years imprisonment.
    
12. As your mitigating factors, your counsel submits that you are elderly and sickly and that you have spent a considerable period in remand.
    
13. Your previous conviction report indicates that you were convicted and sentenced for the offence of criminal intimidation on 06/01/15. Your counsel submits that the said conviction was in relation to the incident that took place between you and the complainant’s mother on the day she complained to the Nabua Police Station with regard to this case. Considering all the circumstances, I am inclined to consider your good behavior until you reached 63 years, as a mitigating factor.
    
14. In view of your personal circumstances and the aforementioned mitigating factor, I deduct 03 years from your sentence.
    
15. I hereby sentence you for an imprisonment term of 13 years. I order that you are not eligible to be released on parole until you serve 09 years of that sentence pursuant to the provisions of section 18 of the Sentencing and Penalties Decree.
    
16. Section 24 of the Sentencing and the Penalties Decree reads thus;
    

“If an offender is sentenced to a term of imprisonment, any period of time during which the offender was held in custody prior to the trial of the matter or matters shall, unless a court otherwise orders, be regarded by the court as a period of imprisonment already served by the offender.”

17. I note that you have spent 08 month and 02 days in remand before you were granted bail and you spent 01 day in remand pending your sentence. The period you were in custody shall be regarded as a period of imprisonment already served by you pertaining to the sentence imposed in this case. The period to be considered as served should be 08 months and 03 days.
    
18. In the result, you are sentenced to 13 years imprisonment with a non-parole period of 09 years. Considering the time spent in remand, the time remaining to be served is as follows;
    

Head Sentence – 12 years, 03 months and 27 days

Non-parole period – 08 years, 03 months and 27 days

19. 30 days to appeal to the Court of Appeal.
    

Vinsent S. Perera
JUDGE

Solicitors for the State : Office of the Director of Public Prosecution, Suva.
Solicitor for the Accused : Office of the Legal Aid Commission, Suva.