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State v Batilote - Sentence [2020] FJHC 903; HAC174.2017 (30 October 2020)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION
Criminal Case No.: HAC 174 of 2017

STATE

V

LIVAI BATILOTE

Counsel : Mr. T. Tuenuku for the State.

: Ms. K. Vulimainadave for the Accused.

Dates of Hearing : 06 October, 2020
Closing Speeches : 07 October, 2020
Date of Summing Up : 07 October, 2020
Date of Judgment : 08 October, 2020
Date of Sentence : 30 October, 2020

SENTENCE

(The name of the victim is suppressed she will be referred to as “L.R”)

1. In a judgment delivered on 8^th October, 2020 this court found the accused guilty and convicted him for one count of rape as per the following information:

Statement of Offence

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

Particulars of Offence

LIVAI BATILOTE between the 1^st day of January to the 31^st day of December, 2015 at Yasawa Island in the Western Division, penetrated the vagina of “L.R”, a 10 year old child with his penis.

2. The brief facts were as follows:
   

The victim and the accused are cousins, in the year 2015 the victim was 10 years of age and a class 4 student living with the accused and his family. One day during the second term of school after the victim returned from school she was alone in the house with the accused.

3. The accused told her to go to his bedroom and bring a torch. When the victim was in the bedroom the accused came and pushed her on the floor and made her lie on her back facing up. The accused forcefully removed the victim’s panty, the victim was scared, the accused removed his ¾ pants and underwear then penetrated the vagina of the victim with his penis and had sexual intercourse with her for about 3 minutes. The accused threatened the victim not to tell anyone about what he had done to her. Later the victim told her aunt about what the accused had done to her, the matter was then reported to the police.
   
4. Both counsel filed their sentence and mitigation submissions including the victim impact statement for which this court is grateful.
   
5. The following personal details and mitigation have been submitted by the accused counsel:
   

a) The accused is a first offender;

b) He was 20 years of age at the time of the offending;

c) Is in a defacto relationship;

d) Sole bread winner of the family;

e) Looks after his elderly parents.

6. I accept in accordance with the Supreme Court decision in Anand Abhay Raj –vs.- The State, CAV 0003 of 2014 (20 August, 2014) that the personal circumstances of an accused person has little mitigatory value in cases of sexual nature.
   

AGGRAVATING FACTORS

7. The following aggravating factors are obvious:
   
   1. Breach of Trust

The victim is the cousin of the accused, he grossly breached the trust of the victim by what he did to her. The accused also abused the sanctity of the relationship that exists between the two. He knew the victim was alone and vulnerable. The accused and the victim were staying together in one house where she was expected to be safe.

2. Planning

The accused had planned what he did, he had deliberately sent the victim to his bedroom to bring a torch and then he followed her.

100. Age difference

The victim was 10 years of age whereas the accused was 20 years. The age difference is substantial.

4. Exposing a child to sexual abuse

The accused had exposed the victim to sexual activity at a very young age which is unacceptable.

5. Victim Impact Statement

In the victim impact statement the victim mentioned that after the incident she was ashamed to face people, emotionally hurt, cannot live a normal happy life and had to undergo counseling.

8. The maximum penalty for the offence of rape is life imprisonment. The Supreme Court of Fiji in Gordon Aitcheson vs The State, Criminal Petition no. CAV 0012 of 2018 (02 November, 2018) has confirmed that the new tariff for the rape of a juvenile is now between 11 years to 20 years imprisonment.
   
9. There has been an increase in sexual offences involving offenders who are known to the victim. It is shocking to note the manner in which the accused had committed this offence on the victim.
   
10. Rape of a child is one of the most serious forms of sexual violence and offenders should be dealt with severely. Children are entitled to live their lives free from any form of physical or emotional abuse. When family members sexually abuse children, violating the Domestic Violence Act, they should not expect any mercy from this court. The punishment ought to be such that it takes into account the society’s outrage and denunciation against such conduct. A long term imprisonment becomes inevitable in such situations.
    
11. The Supreme Court in Mohamm> Alfaaz v Stat State [2018] FJSC 17; CAV0009.2018 (30 August 2018) has stated the ain the following words at p at paragraph 54 that:

“It is useful to refer to the observation expressed by the Fiji Court of Appeal in Matasavui v State; Crim. App. No. AAU 0036 of 2013: 30 September ef="http://www.paclii.olii.org/fj/cases/FJCA/2016/118.html?stem=&synonyms=&query=Silas%20Sanjeev%20Mani" title="View Case">[2016] FJCA 118 wherein csaid “No soco society can afford to tolerate an innerinnermost feeling among the people that offenders of sexual [offences] comd against mothers, daughters and sisters are not adequately punished by courts and such a sh a society will not in the long run be able to sustain itself as a civilised entity.”

13. The Supreme Court in Felix Ram v State [2015C 26; CAV12.2015 (23 October 2015) mentioned a long list of factors that should ould be cobe considered in punishing the offenders of child rape cases. Those factors would include:

(a) whether the crime had been planned, or whether it was incidental or opportunistic;