State v Nalawa - Written Reasons for Judgment and Sentence [2016] FJHC 68; HAC257.2015S (8 February 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 257 OF 2015S

STATE

vs

ILAITIA NALAWA

Counsels : Ms. S. Puamau, Mr. Y. Prasad and Ms. S. Serukai for State
Mr. P. Tawake and Mr. A. Paka for Accused

Hearings : 16, 17 and 18 December, 2015; 1 to 4 February, 2016
Summing Up : 5 February, 2016
Judgment : 5 February, 2016
Written Reasons for Judgment
And Sentence : 8 February, 2016

WRITTEN REASON FOR JUDGMENT AND SENTENCE

1. On 5 February 2016, the three assessors returned with a mixed verdict; the majority (Assessors No. 2 and 3) finding the accused guilty as charged on all counts in the information, while the minority (Assessor No. 1) found the accused not guilty as charged on all counts. The court accepted the majority view and found and convicted the accused on all counts. It rejected the minority view. It said it would give its reasons later. Below are its reasons.
   
2. The court, prior to making the above decision, had reviewed all the evidence called in the trial, and had directed itself in accordance with the summing up it delivered on 5 February, 2016.
   
3. The assessors' verdict was not perverse. It was open to them to reach such conclusions on the evidence. Assessors are there to assist the trial judge come to a decision on whether or not the accused was guilty as charged. The final decision on whether or not the accused was guilty or otherwise, was the trial judge's and the trial judge alone: Ram Dulare, Chandra Bhan and Permal Naidu v Reginam [1956 – 57], Fiji Law Report, Volume 5, pages 1 to 6, page 3; Fiji Court of Appeal.
   
4. In this case, I accepted the 9 year old girl's sworn evidence that, at the material time, someone raped her by penetrating her vagina with his penis. The person who did the above was presumed in law to know that a child complainant was incapable of consenting to the above at the time, and that she was incapable, as a matter of law, to consent to the above.
   
5. As to the accused's alleged confessions to the police in his police caution interview statements [Prosecution Exhibit No. 4(A) and 4(B)] and charge statements [Prosecution Exhibit No. 5(A) and 5(B)], I find that he voluntarily made the above, and the same were the truth. The accused was medically examined before and after the caution interview and the formal charge, and the medical reports (Prosecution Exhibit No. 6 and 7) showed he suffered no injuries while in police custody. He said, he signed all the pages of his interview and charge statements. I reject his sworn denials that he gave the above statements involuntarily and they were not true.
   
6. I therefore accept that he made his confessions voluntarily and out of his own free will and the same were the truth. In a nutshell, he admitted raping the 9 year old female complainant, at the material time, (count no. 4) and also admitted burgling PW7's dwelling house (count no. 1) and stealing her properties (count no. 2). He also admitted assaulting the child complainant with intent to rape her (count no. 3). For the above reasons, I accepted the assessors' majority view and rejected the assessor's minority view on 5 February 2016.
   
7. This case was one of the worst type of child rape cases to ever come before the courts. A 9 year old girl was returning from her school after 3 pm on 7 July 2015. She walked home with a friend along Salua Road, Nakasi. As she came near her home, she made a short cut through the bushes alone. Unbeknown to her, the 31 year old accused was in the bush, intending to pick up the stolen properties he stole earlier from a house he burgled earlier in the morning. The accused saw the girl, wore a black balaclava to cover his face and jumped on her.
   
8. The accused then punched the complainant's face, forcefully pulled off her school uniform and undergarments, took off his trousers, parted the girl's legs and forcefully inserted his penis into her vagina. The girl was seriously injured in her vagina and fainted. After raping her, the accused put on his clothes and fled the crime scene. The matter was later reported to police.
   
9. Of all sexual offences, "rape" is at the top of the criminal calendar. It carries a maximum sentence of life imprisonment (section 207 (1) of the Crimes Decree 2009). In Anand Abay Raj v The State, Criminal Appeal Case No. CAV 0003 of 2014, the Supreme Court of the Republic of Fiji via the Hon. Chief Justice, had set the tariff for the rape of a juvenile a sentence between 10 to 16 years imprisonment. The final sentence will depend on the aggravating and mitigating factors.
   
10. The accused was also convicted of Burglary (count no. 1); Theft (count no. 2) and Assault with intent to commit rape (count no. 3). Burglary carried a maximum sentence of 13 years imprisonment; Theft a maximum of 10 years imprisonment and "Assault with intent to commit rape" a similar maximum of 10 years imprisonment.
    
11. The aggravating factors in this case were as follows:
    
    • (i) Rape of a Child: This type of offence is becoming prevalent in our community. Despite the severe prison sentence the courts are dishing out against child rapist, our courts are still filling up with alleged child rapists. The courts had repeatedly said before, and will say again, it will not standby and let this menace pervade our society. Children are the future of this country and it is only right that the courts stand with them to protect the future of this country. They are the most vulnerable and deserves the most protection by the State. A deterrent sentence is therefore called for and the accused must not complain when he gets the same.
      
    • (ii) Level of Violence accused did on the child complainant: In raping the child complainant, the accused had caused severe injuries to her vagina. This was evident in her medical report, Prosecution Exhibit No. 18. As a result of the accused's offending, the complainant was hospitalized for 3 days.
      
    • (iii) Despite his right to defend himself in a criminal court, the accused showed no remorse during the proceeding. The child complainant had to be called to relive her ordeal in the courtroom, by giving evidence.
      
    • (iv) Through your offending, you have caused great hardship to the child complainant and her family. They had to change their location to better their life style after the trauma you caused. The child's schooling had been affected, and her family are trying to forget the bitter experience to get on with life.
      
12. The mitigating factors are as follows:
    
    • (i) You have been remanded in custody since the 25 July 2015, when you first appeared in court, that is, 6 months 14 days ago.
      
13. I will start with the "rape" charge (count no. 4) as it was the most serious of all the offences. I start with the sentence of 15 years imprisonment. For the aggravating factors, I add 4 years making a total of 19 years imprisonment. I make a deduction of 1 year imprisonment for time already served, while been remanded in custody. Balance is 18 years. On count no. 4, I sentence you to 18 years imprisonment.
    
14. On the burglary charge (count no. 1), I sentence you to 2 years imprisonment.
    
15. On the theft charge (count no. 2), I sentence you to 9 months imprisonment.
    
16. On the assault with intent to commit rape (count no. 3), I sentence you to 3 years imprisonment.
    
17. The summary of your sentences are as follows:
    

(i) Count No. 1 - (ii) Count No. 2 - (iii) Count No. 3 - (iv) Count No. 4 -

Burglary - Theft - Assault with intent to Commit Rape - Rape -

2 years imprisonment 9 months imprisonment 3 years imprisonment 18 years imprisonment

18. Because of the principle of the totality of sentences, the above sentences are made concurrent to each other, making a final total sentence of 18 years imprisonment.
    
19. Mr. Ilaitia Nalawa, for the various offences you committed at Nakasi on 7 July 2015, and especially raping the 9 year complainant on the same date, I sentence you to 18 years imprisonment, with a non-parole period of 17 years imprisonment, effective forthwith.
    
20. Section 4(1) of the Sentencing and Penalties Decree 2009 said the sentence must punish the offender in a manner that is just and also to act as a deterrence and to protect the community. This sentence is a warning to child rapists that the sentences may well increase in future if the child rape cases we see in the courts daily does not decrease.
    
21. The 9 year old complainant's name is permanently suppressed to protect her privacy.
    

Salesi Temo

JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Suva.

Solicitor for Accused : Legal Aid Commission, Suva.