IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

Criminal Case No. HAC No. 64 of 2018

THE STATE

v

GABIRIELI BUARAKI

Counsel	:	Mrs. A. Vavadakua for the State
			Miss K. Boseiwaqa with Ms. M. Tuiloma (L.A.C.) 
			for the Accused
		
Date of Plea		:  	2 April 2019
Date of Sentence		:  	3 April 2019

SENTENCE

1.	The accused entered an unequivocal plea of guilty before this 	Court to the following two counts:

COUNT 1

Statement of Offence

	RAPE: Contrary to section 207(1) and 2(a) and (3) of the Crimes 	Act 2009.

Particulars of Offence

	GABIRIELI BUARAKI, between the 1st day of July 2017 and 	31st day of July 2017, at Qaranivai, Dogotuki, Northern 	Division, penetrated the vagina of (name suppressed), a child 	under the age of 13 years, with his penis. 

COUNT 2

Statement of Offence

	PROCURING ANOTHER TO WITNESS AN ACT OF GROSS    	INDECENCY: Contrary to section 210(1) (b) (ii) of the Crimes Act 	2009

Particulars of Offence

	GABIRIELI BUARAKI, between the 1st day of January 2018 and 	31st day of January 2018 at Qaranivai, Dogotuki, Northern 	Division, procured (name suppressed) without her consent to 	witness an act of gross indecency.

2.	On his agreement to a relevant set of facts the Court convicted 	him of both counts and now proceeds to sentence him for the 	two offences.

	Facts

3.	The victim (“the child”) was 12 years old at the time of the first 	offence and 13 years old at the time of the second offence. The 	accused is her stepfather. 

4.	On an unknown date in July 2017 the child was asleep after 	doing household tasks. She awoke to feeling a weight on top of 	her. It was the accused who was lifting her skirt and removing 	her panty. He then penetrated her with his penis.

5.	In the month of January 2018, the child had bathed herself and 	had gone to the room of her mother and the accused to get 	clean 	clothes to wear. The accused, her stepfather was lying on 	the bed. The child called out to her mother to help her dress. 	The accused then attracted her attention and she saw that he 	was aroused, exposing himself to the child. He told her to come 	and lie on him. The child was fearful and disgusted and tried to 	flee the room at which stage the mother entered and confronted 	the accused.

6.	The accused was subsequently arrested and interviewed by the 	Police under caution. He fully co-operated, admitting his 	offending to them.

	The Accused

7.	The accused is 49 years old, married with 4 children of his own 	and 4 step children. He is a yaqona farmer earning about $120 	per week. 

8.	His Counsel stresses his co-operation, his early guilty plea and 	his remorse. This Court has noticed his remorse. 

9.	He has a clear record and one other matter pending before the 	Courts. That matter is totally unrelated and not a sexual 	offence, so it will not be considered to his detriment.

10.	He has spent 7.5 months in remand awaiting determination of 	these counts.

11.	Although not pleaded, one particular factor in his favour is that 	by pleading to these offences before trial he has saved the child 	who is now 15 years old from reliving this ordeal and telling 	strangers about it. 

12.	In aggravation of the offence, I take into account the gross 	breach of trust expected from a man married to the child’s 	mother, a man who in the role of pater familias  is to protect a 	vulnerable child from the perversions and implications of adult 	physical relationships. 

	The Law

13.	The maximum penalty for the offence of rape is life 	imprisonment and the Supreme Court has held that rapes of 	children must attract a sentence of between 11 and 20 years. 	(Aitcheson CAV0012 of 2018).

14.	Sexual abuse of our nation’s children, all too heinously often at 	the hands of close relatives, is a scourge and the despair  of 	both the public and our law enforcement agencies .It is to be 	hoped that news of heavy sentences being passed on these 	miscreants will filter through to would be offenders and the 	scourge will abate. 

15.	For this offence, I take a starting point of 12 years 	imprisonment, towards the lower end of the tariff band. For the 	aggravation of breach of trust I add another 5 years to the 	sentence. 

16.	Section 4(2) (e) of the Sentencing – Penalties Act 2009 demands 	that I have regard to the effect of the crime on the child. For the 	first time in her life she has had to move away from home and 	from her mother and assume residence with relatives in Suva. 	She is having to adapt to a new school and to a totally different 	environment. For these sad factors I add 2 years to the 	sentence. The interim total is now 19 years imprisonment. For 	the accused’s clear record and for his remorse I deduct two 	years bringing the sentence down to 17 years.

17.	The accused’s plea of guilty has not come at the first 	opportunity, however he did indicate to my brother Goundar J.  	on the 20th August 2018 that he would be pleading guilty. In 	these circumstances and in recognition of the fact that he  	saved the child from the trauma of testifying, the Court deducts 	5 years from the sentence with the result that he is sentenced to 	a term of imprisonment of 12 years. For his time spent in 	remand awaiting this sentence, I deduct 7 months. The 	sentence for the first Count of Rape is a term of imprisonment 	of 11 years and 5 months. 

18.	The maximum penalty for the second offence is ten years 	imprisonment. It is included in the Crimes Act as a sexual 	assault. 

19.	This Court set the tariff for this offence in the case of Abdul 	Khaiyum HAC 160 of 2013, as to be between 2 to 8 years 	imprisonment. 

20.	The most serious sexual assaults involve contact between skin 	and genitalia. This assault is the forcing a female to witness the 	erect penis of the perpetrator. There is no contact between the 	actors and there has been no physical harm occasioned to the 	victim. An appropriate sentence, given that the victim was a 	female minor, is a term of imprisonment of 4 years. I deduct one 	year for the guilty plea meaning that the accused will serve a 	concurrent term of 3 years for the second count. 

	Orders

1.	For the first count of rape the accused will serve a total 	sentence of 11 years and 5 months.

2.		For the second count of procurement, the accused will 	serve a sentence of three years to be served concurrently 	with the first count.

3.		The accused will serve a minimum term of ten years 	imprisonment before he be eligible to be considered for 	parole.

4.		A Domestic Violence Restraining Order is made against 	the accused to protect the child and is to remain in force 	until further order from this Court.

		P. K. Madigan
		Judge

At Labasa
03 April 2019