IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

Criminal Case No. 14 of 2016

STATE

v

TAUSIA FUATA FABIANO

Counsels:		Ms A. Vavadakua for the State
			Mr. I. Rakaria with Miss M. Kumar 						(L.A.C.) for the accused

Date of Conviction	:  20 April 2017
Date of Sentence		:  21 April 2017

SENTENCE

1.	The accused has been convicted in this Court after trial on one 	count of rape.

2.	He has been found to have raped his 27 year old first cousin 	who for the purposes of this sentence we shall refer to as Donna 	(not her real name). 

3.	Although 27 years, Donna has the mental age of a subteen and 	has great difficulty in coping with day to day life. She has relied 	on her mother since birth to guide and protect her. 

4.	On the 12 March 2017, Donna’s mother went to town and left 	Donna in the care of the accused for a few hours. The accused 	was at the time staying temporarily in the family home.

5.	Whilst alone, the accused took Donna into the bedroom, 	undressed her and raped her. When the mother returned she 	learned that something had occurred but Donna was too 	frightened to tell her the detail. All was revealed to an aunt 	about 10 days later and a report made to the Police.

6.	The accused had said in evidence that Donna had insisted on 	sex and had raped him, a defence that wasn’t believed; neither 	by the assessors nor the Court.

The Accused

7.	In mitigation for the accused Counsel told the court that he is 	now 20 years of age and works as a carpentry assistant to his 	father. He is a member of a large family with 7 siblings.

8.	He is said to be remorseful (although the Court saw no evidence 	of such) and he asks for forgiveness. He has sought forgiveness 	from Donna’s family.

9.	He is a practicing Christian and wishes to be free to bring his 	faith to others.

10.	He is young and wishes to pursue a technical education at the 	Technical College in Labasa.

11.	He has spent 4 months in remand awaiting trial and he has one 	previous conviction for indecent assault. 

The Tariff

12.	The maximum penalty for rape is life imprisonment and the 	sentencing range for rape of an adult is well settled to be 	between 7 to 15 years. (Marawa [2004] FJHC 338 per Gates J. 	(as he then was) and Kasim C.App 14 of 1993 C.A. 	(unreported).

13.	Rapes of children attract sentences of between 10 to 16 years 	(Raj CAV003 of 2014 (Supreme Court)).

This Sentence

14.	This rape was the rape of a 27 year old who because of mental 	impairment acted and thought as a 10 year old would. That 	being so, it greatly aggravates the offence or alternatively 	removes the case from the adult range and places it into the 	child range. Rapes of children are regarded by the Courts as far 	more serious than rapes of adults in that children are not yet 	mature enough to cope emotionally with sexual violation, and if 	subject to such abuse their own progress to sexual maturity can 	well be jeopardized.

15.	To rape a mental defective can have the same disastrous 	consequences and it for this reason that sentences should be 	passed in the range pari passu with the mental age of the 	victim. 

16.	This crime therefore must be sentenced within the range of 	rapes of children; that is a sentence of between 10 to 16 years.

17.	I take a starting point of 10 years. It is grossly aggravating that 	the accused should have breached the trust placed in him by 	his aunt to care for Donna whilst she was away. For that 	aggravation I add three years to the sentence. It is also an 	aggravating factor that the victim of the rape was mentally 	impaired, but as discussed earlier this aggravation is subsumed 	in sentencing the accused within the higher “child tariff”. 

18.	The accused although young does not have the advantage of a 	clear record, he already having been convicted of a minor, but 	sexual offence in 2016. 

19.	The court is not impressed with his mitigation of remorse and 	desire for forgiveness but his major mitigatory advantage is 	found in his very young age. He was 19 when committing the 	offence and 20 years of age at present. The courts have always 	been at pains to treat young offenders with mercy and to keep 	them from the baneful and corrupting influences of an adult 	prison community. Such good intentions however must be 	balanced with the seriousness of the offence he (or she) is 	convicted of. 

20.	This offence is very serious indeed and the youth of the accused 	must be overshadowed by the gravity of his crime.

21.	The only mitigating features that can assist this accused are his 	time spent in remand and his very young age. I deduct a 	generous 6 months to reflect the remand period served and so 	the sentence that the accused shall serve will be one of 12 years 	and 6 months.

22.	I order that he serve a minimum term of 9 years before being 	eligible for parole. This lenient minimum term is not intended to 	distort the tariff for rapes of children but is a concession to this 	young and impetuous youth. 

23.	I make a domestic violence restraining order against the 	accused as perpetrator and the victim as the protected person, 	an order to be in effect until further order of the Court.

Summary

24.	Final sentence: 12 years 6 months
	Minimum term:  9 years

	P. K. Madigan
	Judge

At Labasa
21 April 2017