State v Tuitoga - Sentence [2022] FJHC 116; HAC308.2020 (16 March 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 308 of 2020

STATE

vs.

USA RAICI TUITOGA

Counsel: Ms. U. Tamanikaiyaroi with Mr. L. Baleilevuka for the State
Mr. T. Varinava with Ms. A. Sharma for Accused

Date of Hearing: 07^th – 8^th March 2022
Date of Closing Submission: 10^th March 2022
Date of Judgment: 14^th March 2022
Date of Sentence: 16^th March 2022

SENTENCE

1. The Court found you guilty of one count of Rape, contrary to section 207 (1) and (2) (a) of the Crimes Act, which carries a maximum penalty of life imprisonment, and one count of Sexual Assault, contrary to Section 210 (1) (a) of the Crimes Act, which carries a maximum penalty of ten years imprisonment, and convicted for the same accordingly.
   
2. It was proved during the hearing that you had penetrated the vagina of the Complainant with your penis and then sex assaulted her by indecentlcently and unlawfully touching her vagina with your hands. You were the leader and the Senior Pastor of a church group. The Complainant had joined the church mission group and moved to Suva. She was staying with you and your family in May 2020. On the 28th of May 2020, you went to another house to have a church cell group meeting with the Complainant. Having finished the meeting, you walked back home with the Complainant. On your way back home, you asked the Complainant to turn to another road after passing the playground. You then asked the Complainant to have sex with you. She was scared. You told her to do what you asked her to do. You then asked the Complainant to stand facing her back to you. You then pulled up her dress and pulled down her shorts and undergarment. She was forced to bend down. You then inserted your penis in her vagina. Having done that, you penetrated her vagina with your penis for about 2 to 3 minutes. You then touched her vagina with your hands. You have told the Complainant not to tell anyone about this incident.
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3. Rape is one of the most humiliating and distressing crimes. It violates the physical self of a person estroys the personal dignitignity and self-autonomy of a person. Therefore, Rape is a serious offence.
   
4. The primary purpose of this sentence is the principle of rence. It is the responsibility of the Court to deter offenders or other persons from commicommitting offences of the same or similar nature and protect the community from offenders of this nature.
   
5. The tariff for the offence of Rape involving an adult victim ranges from seven (07) years fteen (15) years of imprisonment period. The tariff for ther the offence of Sexual Assault ranges from two (02) years to eight (08) years imprisonment.
   
Both of these offences are founded on the same series of offending. Therefore, the Court finds it appropriate to impose an aggregate sentence according to Section 17 of the Sentencing and Penalties Act.

7. You found an opportunity when the Complainant had no option of escaping or resisting your sexual advancement to unleash this sexual attack on the Complainant. Therefore, this is an opportunistic crime. The victim impact report states the Complainant is experiencing adverse emotional and psychological effects due to this crime. Given these reasons, I find the level of culpability and harm in these offences are substantially high.
   
You have blatantly breached the Complainant's trust in you as a church leaderthe Senior Pastor. The Complainant was thirty-one years olds old, and you were 59 years old at the time of this offence. The age difference between you and the Complainant is substantially high. I find these facts as aggravating factors.

9. The learned Counsel for the Defence submitted youronal and family background, which I do not find any mitigatory value.
   
10. The learned Counsel for the Defence submitted that you are a first offender; hence,are entitled to a substantive discount. I find that your prur previous good character, especially the fact that you have not been tainted with any previous conviction for an offence of sexual nature, would have definitely allowed you to freely move around in the community as a church leader without any suspicion of risk. The community has perceived you as a man of good character and allowed you to move in the community freely. Accordingly, I do not find your previous good character has any significant mitigatory value. Hence, you are only entitled to a meagre discount for your previous good character.
    
11. Having taken into consideration the above-discussed reasons,ntence you to a period of twelve (12) years imprisonment as an aggregate sentence.
Having considered the seriousness of this crime, the purpose of this sce, and your age, I find ten (10) years of the non-parole pole period would serve the purpose of this sentence. Hence, you are not eligible for parole for ten (10) years under Section 18 (1) of the Sentencing and Penalties Act.

Head Sentence

13. Accordingly, I sentence you to a period of twelve (12) years imprisonment as an aggregate sentence to one count of Rape, contrary to section 207 (1) and (2) (a) of the Crimes Act, and one count of Sexual Assault, contrary to Section 210 (1) (a) of the Crimes Act. Moreover, you are not entitled to parole for ten (10) years pursuant to Section 18 (1) of the Sentencing and Penalties Act.
    

l Pual Period of the Sentence

14. You have been in remand custody for this case for nearly six (06) months and twenty-five (25) days. In pursuant to Section 24 of the Sentencing and Penalties Act, I consider seven (7) months as a period of imprisonment that you have already served.
    
15. Accordingly, the actual sentencing period is eleven (11) years and five (05) months imprisonment with a non-parole period of nine (09) years and five (05) months.
    
16. Thirty (30) days to appeal to the Fiji Court of Appeal.

.......................................................

Hon. Mr. Justice R.D.R.T. Rajasinghe

At Suva

p>th March 2022

Solicitors<

Office of the Director of Public Prosecutions for the State.

Office of the Legal Aid Commission for the Accused.