State v Lautobui - Sentence [2021] FJHC 414; HAC112.2019 (20 December 2021)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Case No.: HAC 112 of 2019

STATE

V

LEONE ROKO LAUTOBUI

Counsel : Ms. S. Naibe for the State.

Ms. K. Vulimainadave for the Accused.

Date of Submissions : 15 December, 2021

Date of Sentence : 20 December, 2021

SENTENCE

(The names of the complainants are suppressed they will be referred to as “ML” and “AL” respectively).

1. The accused is charged with the following offences as per the information filed by the Director of Public Prosecutions dated 12^th August, 2019:
   

COUNT ONE

[Representative Count]
Statement of Offence

SEXUAL ASSAULT: contrary to section 210 (1) (a) of the Crimes Act 2009.

Particulars of Offence

LEONE ROKO LAUTOBUI, between the 1^st day of March 2019 to the 31^st day March 2019 at Lautoka in the Western Division, unlawfully and indecently assaulted “ML” by licking her vagina.

COUNT TWO
Statement of Offence

SEXUAL ASSAULT: contrary to section 210 (1) (a) of the Crimes Act 2009.

Particulars of Offence

LEONE ROKO LAUTOBUI, on the 6^th June 2019 at Lautoka in the Western Division, unlawfully and indecently assaulted “ML” by licking her vagina.

COUNT THREE
Statement of Offence

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

Particulars of Offence

LEONE ROKO LAUTOBUI, on the 6^th June 2019 at Lautoka in the Western Division, penetrated the vagina of “ML” a child under 13 years with his finger(s).

COUNT FOUR
Statement of Offence

SEXUAL ASSAULT: Contrary to section 210 (1) (a) of the Crimes Act 2009.

Particulars of Offence

LEONE ROKO LAUTOBUI, on 9^th June 2019 at Lautoka in the Western Division, unlawfully and indecently assaulted “AL” by licking her vagina.

COUNT FIVE
Statement of Offence

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

Particulars of Offence

LEONE ROKO LAUTOBUI, on 9^th June 2019 at Lautoka in the Western Division, penetrated the vagina of “AL” a child under 13 years with his finger(s).

2. This file was first called in the High Court on 19^th July, 2019 after the accused pleaded not guilty the matter proceeded to pre-trial stages. On 25^th November, 2020 (after about 1 year and 4 months) the accused in the presence of his counsel pleaded guilty.
   
3. After numerous adjournments on 20^th December, 2021, the accused admitted the final amended summary of facts read by the state counsel. The final amended summary of facts read by the state counsel is as follows:
   

The complainants in this matter are, “ML” (PW1), 10 years old and “AL” (PW2) 7 years old, both students, residing at Tramline, Field 40, Lautoka. [Birth Certificate of PW1 and PW2 is attached herein]

The Accused in this matter was 69 years old, Unemployed of Nasoso, Nadi. The accused is the paternal grandfather of both the complainants.

Sometimes in the month of March 2019, whilst PW1 was sleeping in her parent’s bedroom, the accused came into the room and woke her up and she went to his bedroom. Once inside his bedroom, the accused took off PW1’s pants, panty and then made her lie down on the bed. The accused then licked her “duna” (vagina) and whilst licking her vagina he kept saying “qo na kequ” meaning “this is my food”. The accused told PW1 not to tell her parents and he would give $5.00 to her.

On another occasion in 2019, the accused was in the plantation and he called PW1 to bring a bottle of water. PW1 took the bottle of water and on her way back home, the accused pulled her hand, made her lie down on the pala sack, took off her tights, panty and then licked her “duna”(vagina). PW1 told the accused not to do it and just then her mother called. The accused told her not to tell anyone about what he did to her or else he will stop giving her money. When the accused returned home from the plantation, he gave $5.00 to PW1.

On 6^th June 2019, the accused woke PW1 and she went to his bedroom. Inside the bedroom, the accused took off her pants, panty and licked her “duna” (vagina). PW1 also felt pain in her “duna” (vagina) because the accused was pushing his finger in and out of her “duna” (vagina). Afterwards the accused then asked PW1 to wear the pants and told her to go to her bedroom. The next day the accused gave her $10.00 and told her to share it with her elder sister.

On 9^th June 2019, PW2 was sleeping inside her bedroom when the accused came to wake her and told her to go to his room. When they were inside the accused bedroom, the accused told PW2 to take off her pants and to lie down. PW2 did as she was told and the accused also took off his clothes and lay on top of her. Then the accused spread PW2’s leg and licked her “duna” (vagina). The accused also inserted his finger inside PW2’s “duna” (vagina).

On 10^th June 2019, PW1 and PW2 told their parents about what the accused had been doing to them. The matter was reported to the police and the accused was arrested and interviewed under caution. The accused admitted to licking PW1 and PW2’s vagina (Q & A 31, 35, 39, 43, 44, 45 and 46). The accused also admitted to inserting his fingers inside PW1’s vagina (Q & A 47, and 49). (Record of Interview is attached herein).

The accused was subsequently charged for sexual assault and rape.

Both the complainants were medically examined on 12^th June 2019. (Medical Report is attached herein).

4. After considering the final amended summary of facts read by the state counsel which was admitted by the accused, and upon reading his caution interview this court is satisfied that the accused has entered an unequivocal plea of guilty on his freewill. This court is also satisfied that the accused has fully understood the nature of the charges and the consequences of pleading guilty.
   
5. The final amended summary of facts admitted by the accused satisfies all the elements of the offences of sexual assault and rape.
   
6. In view of the above, this court finds the accused guilty as charged and he is convicted accordingly.
   
7. This court is mindful of the fact that there are two victims one is aged 10 and the other 7. The age difference between the two victims is not that much therefore it is only proper that an aggregate sentence be imposed since the five offences for which the accused stands convicted are founded on the same facts and are of similar character.
   
8. Section 17 of the Sentencing and Penalties Act states:
   

“If an offender is convicted of more than one offence founded on the same facts, or which form a series of offences of the same or a similar character, the court may impose an aggregate sentence of imprisonment in respect of those offences that does not exceed the total effective period of imprisonment that could be imposed if the court had imposed a separate term of imprisonment for each of them.”

9. Both counsel have filed written sentence and mitigation submissions for which this court is grateful.
   
10. The accused counsel presented the following mitigation:
    
    1. The accused is a first offender;
       
    2. He was 69 years of age at the time;
       
    100. Is a Farmer who earns about $30 per week;
         
    4. Is married with 3 children and 9 grandchildren;
       
    5. Is genuinely remorseful of his actions, deeply regrets what he has done;
       
    6. Sincerely apologies to the victims, to his son and family;
       
    7. Pleaded guilty;
       
    8. Cooperated with the police;
       
    9. Promises not to reoffend.
11. 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

12. The aggravating factors are:

(a) Breach of Trust

The victims are the granddaughters of the accused. He grossly breached the trust of both the victims by his actions and also abused the sanctity of the relationship that existed between a grandfather and his granddaughters.

(b) Planning

There is some degree of planning involved in what the accused did, he knew the victims were obedient to him, they were naive, innocent and vulnerable and he took advantage of the situation. Being the paternal grandfather the accused also had some authority over the victims.

(c) Age difference

The victims were 7 and 10 years of age whereas the accused was 69 years of age. The age difference was substantial, the accused being a matured adult.

(d) Exposing children to sexual abuse

The accused had exposed the victims to sexual activity at a very young age he basically robbed them of their innocence by exposing them to unexpected sexual encounters.

(e) Victim Impact Statement

(i) Victim “ML”

In the victim impact statement the first named victim stated that her life changed after what her grandfather had done to her. When she thinks of the incidents she feels scared, ashamed and angry.

(ii) Victim “AL”

In the victim impact statement the second named victim stated that she has lost trust in elderly people sometimes she would get bad dreams about what the accused had done to her. The victim has undergone three counseling sessions after the incidents.

TARIFF

13. The maximum penalty for the offence of sexual assault is 10 years imprisonment the tariff is a sentence between 2 years to 8 years. The top of the range is reserved for blatant manipulation of the naked genitalia or anus. The bottom of the range is for less serious assaults such as brushing of covered breasts or buttocks (see State vs. Laca, HAC 252 of 2011 (14 November, 2012).
    
14. 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.
    

GUILTY PLEA

15. The accused pleaded guilty about 1 year and 4 months after the matter was called in this court. In Gordon Aitcheson vs. The State, criminal petition no. CAV 0012 of 2018 (2 November, 2018) the Supreme Court offered the following guidance at paragraphs 14 and 15 in regards to the weight of a guilty plea as follows:
    

[14]. In Rainima -v- The State [2015] FJCA 17; AAU 22 of 2012 (27 February 2015) Madigan JA observed:

“Discount for a plea of guilty should be the last component of a sentence after additions and deductions are made for aggravating and mitigating circumstances respectively. It has always been accepted (though not by authoritative judgment) that the “high water mark” of discount is one third for a plea willingly made at the earliest opportunity. This court now adopts that principle to be valid and to be applied in all future proceeding at first instance.”

In Mataunitoga –v- The State [2015] FJCA 70; AAU125 of 2013 (28^th May 2015) Goundar JA adopted a similar but more flexible approach to this issue:

“In considering the weight of a guilty plea, sentencing courts are encouraged to give a separate consideration and qualification to the guilty plea (as a matter of practice and not principle) and assess the effect of the plea on the accused by taking into account all the relevant matters such as remorse, witness vulnerability and utilitarian value. The timing of the plea, of course, will play an important role when making that assessment.”

[15]. The principle in Rainima must be considered with more flexibility as Mataunitoga indicates. The overall gravity of the offence, and the need for the hardening of hearts for prevalence, may shorten the discount to be given. A careful appraisal of all factors as Goundar J has cautioned is the correct approach. The one third discount approach may apply in less serious cases. In cases of abhorrence, or of many aggravating factors the discount must reduce, and in the worst cases shorten considerably.

16. This court accepts that genuine remorse leading to a guilty plea is a substantive mitigating factor in favour of an accused, however, the guilty plea must be entered in the true spirit of remorse since genuine remorse can reduce the harshness in the final sentence (see Manoj Khera v The State, CAV 0003 of 2016 (1 April, 2016).
    
17. When looking at this case, this court does not believe that the accused has shown genuine remorse when he pleaded guilty (on 25^th November, 2020). The date of allegation is from March, 2019 till June, 2019, and the accused did not plead guilty until 25^th November, 2020.
    
18. Genuine remorse is about genuinely feeling sorry for what a person has done, accepting guilt because of strong evidence and proof of the offender’s deeds and then pleading guilty is not genuine remorse per se. In this regard, the sentencing court has a responsibility to assess the guilty plea along with other pertinent factors such as the timing of the plea, the strength of the prosecution case etc. Here there is no doubt the timing of the guilty plea is late and that the prosecution had a strong case against the accused.
    
19. Nevertheless, by pleading guilty the accused saved the court’s time and expenses and also prevented the victims from reliving their experience in court. Bearing this in mind, the accused ought to receive some reduction for his guilty plea.
    

REPRESENTATIVE COUNT

20. Although the accused is charged with one representative count of sexual assault on the first victim this accused cannot be punished for all the other occasions of sexual assault but for one occasion as charged (see Senilolokula v State, Criminal Petition no. CAV 0017 of 2017 (26 April, 2018).
    
21. After assessing the objective seriousness of the offences committed I take 11 years imprisonment (lower range of the scale) as the starting point of the sentence. I increase the sentence for aggravating factors, the accused gets a reduction for mitigation and good character (although the personal circumstances and family background of the accused has little mitigatory value). The sentence is further reduced for guilty plea (although late in time), and for the remand period of 8 months and 5 days.
    
22. Considering all of the above, the final aggregate sentence is 14 years imprisonment. I am satisfied that the term of 14 years imprisonment does not exceed the total effective period of imprisonment that could be imposed if the court had imposed a separate term of imprisonment for each offence for the two victims.
    
23. Mr. Lautobui you have committed serious offences against your granddaughters who you were supposed to protect and care. The victims were unsuspecting and vulnerable. You cannot be forgiven for what you have done. I also note that you are an elderly citizen and that you have pleaded guilty, however, you should have known better being a matured adult.
    
24. The victims have also been psychologically and emotionally affected, rape is not only a physical act, it destroys the very soul of the victim, and also brings about a sense of hopelessness and anxiety which cannot be measured or repaired by anyone. You have scarred the life of your granddaughters forever. There is no doubt that a positive and a happy childhood memories contribute towards child development which is an inspiration for the future. Unfortunately, this is not so for the victims.
    
25. There has been an increase in sexual offences involving offenders who are known to the victim and are mature adults. It is shocking to note the manner in which the accused had committed these offences on the victims.
    
26. 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.

27. The Supreme Court in Mohammed Alfaaz v State [2018] FJSC 17; CAV0009.2018 (30 August 2018) has stated the above in the following words 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 [2016] FJCA 118 wherein court said that “No society can afford to tolerate an innermost feeling among the people that offenders of sexual offenders of sexual crimes committed against mothers, daughters and sisters are not adequately punished by courts and such a society will not in the long run be able to sustain itself as a civilised entity.”

28. Having considered section 4 (1) of the Sentencing and Penalties Act and the serious nature of the offences committed on both the victims who were aged 10 and 7 years compels me to state that the purpose of this sentence is to punish offenders to an extent and in a manner which is just in all the circumstances of the case and to deter offenders and other persons from committing offences of the same or similar nature.
    
29. Under section 18 (1) of the Sentencing and Penalties Act (as amended), a non-parole period will be imposed to act as a deterrent to the others and for the protection of the community as well. On the other hand this court cannot ignore the fact that the accused whilst being punished should be accorded every opportunity to undergo rehabilitation. A non-parole period too close to the final sentence will not be justified for this reason.
    
30. Considering the above, I impose 12 years as a non-parole period to be served before the accused is eligible for parole. I consider this non-parole period to be appropriate in the rehabilitation of the accused and also meet the expectations of the community which is just in the circumstances of this case.
    
31. In summary, I pass an aggregate sentence of 14 years imprisonment with a non-parole period of 12 years to be served before the accused is eligible for parole. Due to the closeness of the relationship between the accused and the victims a permanent non-molestation and non-contact orders are issued to protect the victims under the Domestic Violence Act.
    
32. 30 days to appeal to the Court of Appeal.
    

Sunil Sharma
Judge

At Lautoka
20^th December, 2021

Solicitors
Office of the Director of Public Prosecutions for the State.
Office of the Legal Aid Commission for the Accused.