State v Rasuaki - Sentence [2017] FJHC 432; HAC 128 of 2016 (14 June 2017)

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

CRIMINAL CASE NO: HAC 128 of 2016

STATE

V

TEVITA RASUAKI

Counsel : Ms. Kimberly Semisi for the State
Ms. Safaira Ratu for the Accused

Dates of Trial : 29-31 May, 1-2 June & 5-6 June 2017
Summing Up : 8 June 2017
Judgment : 9 June 2017
Sentence : 14 June 2017

The name of the complainant is suppressed. Accordingly, the complainant will be referred to as “K.R.”

SENTENCE

[1] Tevita Rasuaki you have been found guilty and convicted of the following offences for which you were charged:

FIRST COUNT

Statement of offence

SEXUAL ASSAULT –Contrary to Section 210(1) (a) of the Crimes Act No. 44 of 2009.

Particulars of the Offence

TEVITA RASUAKI on the 19^th day of March 2016, at Suva in the Central Division, unlawfully and indecently assaulted K.R., by touching her breasts.

SECOND COUNT

Statement of offence

SEXUAL ASSAULT –Contrary to Section 210(1) (a) of the Crimes Act No. 44 of 2009.

Particulars of the Offence

TEVITA RASUAKI on the 22^nd day of March 2016, at Suva in the Central Division, unlawfully and indecently assaulted K.R., by touching her breasts.

THIRD COUNT

Statement of offence

SEXUAL ASSAULT –Contrary to Section 210(1) (a) and (2) of the Crimes Act No. 44 of 2009.

Particulars of the Offence

TEVITA RASUAKI on the 22^nd day of March 2016, at Suva in the Central Division, unlawfully and indecently assaulted K.R., by licking her vagina.

FOURTH COUNT

Statement of offence

RAPE –Contrary to Section 207(1) and (2) (b) of the Crimes Act No. 44 of 2009.

Particulars of the Offence

TEVITA RASUAKI on the 26^th day of March 2016, at Suva in the Central Division, penetrated the vagina of K.R., with his finger, without her consent.

FIFTH COUNT

Statement of offence

SEXUAL ASSAULT –Contrary to Section 210(1) (a) and (2) of the Crimes Act No. 44 of 2009.

Particulars of the Offence

TEVITA RASUAKI on the 26^th day of March 2016, at Suva in the Central Division, unlawfully and indecently assaulted K.R., by licking her vagina.

[2] You pleaded not guilty to the above mentioned five charges and the ensuing trial was held over 7 days. The complainant, her mother, a medical officer and two police witnesses gave evidence for the prosecution, while you gave evidence in support of your case.

[3] At the conclusion of the evidence and after the directions given in the summing up, the three Assessors unanimously found you guilty of the count of Rape and the four counts of Sexual Assault against you. Having reviewed the evidence, this Court decided to accept their unanimous opinion and found you guilty and convicted you of the said five charges.

[4] You are the step-father of the complainant. The complainant was only 15 years of age at the time you committed the above offences on her, and as such, she was a juvenile. In terms of the Victim Impact Statement filed in Court, it is recorded that the complainant has been emotionally and psychologically traumatised by your actions.

[5] It was proved during the trial that, on the 19 March 2016, while the complainant was sleeping, you touched her breasts. It was also proved that, on the 22 March 2016, while the complainant was sleeping, you touched her breasts and licked her vagina. It was further proved that, on the 26 March 2016, while the complainant was sleeping, you penetrated her vagina, with your finger, without her consent and that you licked her vagina.

[6] The offence of Rape in terms of Section 207(1) of the Crimes Act No. 44 of 2009 (“Crimes Act”) carries a maximum penalty of imprisonment for life.

[7] The severity of the offence of Rape was highlighted by the Fiji Court of Appeal in the case of Mohammed Kasim v. The State [1994] FJCA 25 (27 May 1994); where it was stated:

“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.”

[8] In the case of State v. Marawa [2004] FJHC 338; His Lordship Justice Gates stated:

“Rape is the most serious sexual offence. The Courts have reflected increasing public intolerance for this crime by hardening their hearts to offenders and meting out harsher sentences”.

[9] The High Court in the case of State v. AV [2009] FJHC 24 (2 February 2009) stated:

“Rape is the most serious form of sexual assault. In this case a child was raped. Society cannot condone any form of sexual assaults on children. Children are our future. The Courts have a positive obligation under the Constitution to protect the vulnerable from any form of violence or sexual abuse. Sexual offenders must be deterred from committing this kind of offences”.

[10] In the case of Anand Abhay Raj v. The State [2014] FJSC 12 (20 August 2014); Chief Justice Gates confirmed that the tariff for the Rape of a juvenile is between 10 years to 16 years imprisonment.

[11] In the light of the above guiding principles, I commence your sentence at 10 years for the count of Rape.

[12] The aggravating factors are as follows:

(i) You are the step-father of the complainant.

(ii) There was a large disparity in age between you and the complainant.

(ii) The complainant looked up to you as a father figure. There has been a gross breach of that trust.

(iii) You committed these offences on the victim while she was asleep.

(iv) You took advantage of the complainant’s vulnerability and naivety.

[13] In mitigation you have submitted that you are 59 years of age and that you have eight children, three of whom are young children who you are supporting. It has also been submitted that you usually suffer from knee pain and chest pain. It is the opinion of this Court that these are personal circumstances and cannot be considered as mitigating circumstances.

[14] You are not a first offender. In terms of the Previous Convictions Report filed in Court, two previous convictions have been recorded against you over the past 10 years. Therefore, this Court cannot consider you as a first offender.

[15] Considering the aforementioned aggravating factors, I increase your sentence by a further 4 years. Now your sentence is 14 years. As I have stated above, there are no mitigating circumstances in your favour so as to grant you any concession or deduction in your sentence.

[16] You have been convicted of two counts of Sexual Assault in terms of Section 210(1) (a) of the Crimes Act (First Count and Second Count).

[17] In the cases of State v. Abdul Khaiyum [2012] FJHC 1274 and State v. Epeli Ratabacaca Laca [2012] FJHC 1414 (14 November 2012); Justice Madigan proposed a tariff between 2 years to 8 years imprisonment for offences of Sexual Assault in terms of Section 210 (1) of the Crimes Act.

[18] In this case it has been proven that you touched the breasts of the complainant. As such, in the light of the above guiding principles, and taking into consideration the aggravating factors and also the fact that there are no mitigating factors in your favour, I sentence you to 3 years imprisonment for each count of Sexual Assault under Section 210 (1) of the Crimes Act.

[19] You have been convicted of two counts of Sexual Assault in terms of Section 210(1) (a) and (2) of the Crimes Act (Third Count and Fifth Count).

[20] In the case of State v. Ratawake [2016] FJHC 1078 (28 November 2016); Justice Fernando proposed a tariff between 5 years to 10 years imprisonment for offences of Sexual Assault in terms of Section 210 (2) of the Crimes Act.

[21] In this case it has been proven that you licked the complainant’s vagina. In the light of the above guiding principles, and taking into consideration the aggravating factors and also the fact that there are no mitigating factors in your favour, I sentence you to 7 years imprisonment for each count of Sexual Assault under Section 210 (2) of the Crimes Act.

[22] In the circumstances, the sentences are as follows:

First Count-Sexual Assault in terms of Section 210 (1) of the Crimes Act – 3 years imprisonment.

Second Count-Sexual Assault in terms of Section 210 (1) of the Crimes Act – 3 years imprisonment.

Third Count-Sexual Assault in terms of Section 210 (2) of the Crimes Act – 7 years imprisonment.

Fourth Count – Rape in terms of Section 207 (1) of the Crimes Act - 14 years imprisonment.

Fifth Count - Sexual Assault in terms of Section 210 (2) of the Crimes Act – 7 years imprisonment.

I order that all these five sentences of imprisonment to run concurrently. Therefore, your total term of imprisonment will be 14 years.

[23] Accordingly, I sentence you to a term of imprisonment of 14 years imprisonment. Pursuant to the provisions of Section 18 of the Sentencing and Penalties Act, I order that you are not eligible to be released on parole until you serve 11 years of that sentence.

[24] Section 24 of the Sentencing and Penalties Act 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.”

[25] You have been in remand for this case since 30 March 2016, the day you were arrested. Accordingly, you have been in remand custody for 1 year and 2½ months. The period you were in custody shall be regarded as period of imprisonment already served by you. I hold that the period of 1 year and 3 months should be considered as served in terms of the provisions of Section 24 of the Sentencing and Penalties Act.

[26] In the result, you are sentenced to a term of imprisonment of 14 years with a non-parole period of 11 years. Considering the time you have spent in remand, the time remaining to be served is as follows:

Head Sentence - 12 years and 9 months.

Non-parole period - 9 years and 9 months.

[27] You have 30 days to appeal to the Court of Appeal if you so wish.

Riyaz Hamza
JUDGE

HIGH COURT OF FIJI

AT SUVA
Dated this 14^th Day of June 2017

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

Solicitor for the Accused : Office of the Legal Aid Commission, Suva.