State v Naisau - Sentence [2016] FJHC 800; HAC057.2013 (29 August 2016)

THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 057 OF 2013

STATE

vs

PENI NAISAU

Counsels : Ms. S. Navia for the State
Ms. P. Preetika and Mr. D. Chand for the Accused

Date of Trial : 9^th, 10^th and 11^th August 2016

Summing Up : 12^th August 2016

Judgment : 23^rd August 2016

Sentence : 29^th August 2016

(Name of the complainant is permanently suppressed and will be referred to as A.B.)

SENTENCE
___________________________________________________________________________

[1] PENI NAISAU, after being convicted on count of Rape, contrary to Sections 207(1), (2)(c) and (3) of the Crimes Decree No. 44 of 2009, you are now brought before this Court for imposition of your sentence.

[2] You pleaded not guilty to the above charge. The ensuing trial proper lasted for three days in this Court; during which, the complainant, her sister and the two Police officers, who were involved with the recording your caution interview statement have given evidence for the prosecution while you offered evidence in support of your denial and called a witness to give evidence on your behalf.

[3] At the conclusion of trial; having reviewed the evidence and its summing up to assessors, this Court decided to accept their unanimous opinion and found you guilty and convicted you to the count of Rape.

[4] The following facts were proved during the trial:

(i) The 7 years old complainant’s mother and your wife are friends and as regularly done, she has come to visit your wife with her mother and two sisters on that evening. The children watched TV while their mothers drank grog.

(ii) You were cooking dinner in the kitchen and then you called the complainant to the kitchen. You then got her onto the kitchen table and asked her to put down her pants and panties. You then unzipped your trouser, put some cream on your penis and asked the complainant to suck it. She did as she was told. Hearing someone’s footsteps you asked her to dress up and play with other kids.

(iii) She did not reveal this incident until her sister asked her a few days later observed her behaviour of sucking a stem of a soursop fruit.

[5] In your evidence you said you only got her to lick your left testicle and denied getting her to such your penis.

[6] According to Section 207(1) of the Crimes Decree No. 44 of 2009, the maximum punishment for Rape is imprisonment for life. It is a serious offence.

[7] The complainant was 7 of age at the time of the Rape and therefore, is a juvenile. The tariff for Rape of a juvenile is confirmed in the Judgment of Chief Justice Gates in Raj v State [2014] FJSC 12. The starting point of imprisonment for Rape of a juvenile is 10 years. The tariff is between 10 years to 16 years.

[8] In Mohammed Kasim v The State (unreported) Cr. Case No. 14 of 1993; of 27 May 1994, the Court of Appeal observed thus:

"It must be recognized by the Courts that the crime of rape has become altogether too frequent and that the sentences imposed by the Courts for that crime must more nearly reflect the understandable public outrage."

[9] In determining the starting point within the said tariff, Goundar J, in Koroivuki v State [2013] FJCA 15 has formulated the following guiding principles;

"In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this time. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff. If the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range".

[10] Considering the nature of offending, and in the light of the above guiding principles, I commence your sentence at 12 years of imprisonment for the count of Rape.

[11] The aggravating factors are:

(i) Breach of trust the victim had towards you as she was a guest;

(ii) Significant degree of opportunistic planning;

(iii) Taking advantage of the victim's vulnerability;

(iv) Display of total disregard to the victim's wellbeing;

(v) The 39 years of age gap between you and the complainant;

(vi) Continuing psychological impact on the complainant.

[12] I add 4 years on your sentence for above aggravating factors. Now your sentence is 16 years.

[13] The mitigating factors are:

(i) You are a first offender;
(ii) You are a 49 year old executive chef of a resort;
(iii) You are married and support your wife and four children as the sole breadwinner of the family.

[14] I deduct 3 years from your sentence for the above mitigating factors. Now the sentence is 13 years.

[15] You were in remand for this case for a period of 39 days before trial and I consider it as a six week period.

[16] In view of the provisions contained in Section 24 of the Sentencing and Penalties Decree 2009, I deduct your 6 week long remand period from your sentence and now the sentence to serve is 12 years 10 months and 02 weeks.

[17] Considering Section 18 (1) of the Sentencing and Penalties Decree, I impose 10 years 10 months and 02 weeks of non-parole period in view of the judgement of Court of Appeal in Paula Tora v The State [2015] FJCA 20 and was endorsed by the Supreme Court in Paula Tora v The State [2015] FJSC 23.

Summary

[18] Your final sentence is therefore as follows:

(i) For the count of Rape – 12 years, 10 months and 02 weeks of imprisonment.
(ii) Non-parole period - 10 years 10 months and 02 weeks.

[19] You have 30 days to appeal to the Court of Appeal.

ACHALA WENGAPPULI
JUDGE

At Suva
29^th August 2016

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

Solicitor for the Accused : P. Preetika Lawyers