State v Veiqali [2022] FJHC 118; HAC205.2021 (15 March 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 205 of 2021

STATE

vs.

NIKO LINO VEIQALI

Counsel: Ms. A. Vavadakua for the State
Ms. R. Nabainivalu for Accused

Date of Sentence 15^th March 2022

SENTENCE

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

1. Your were charged with the following offences as per the information filed by the Director of Public Prosecutions dated 3^rd November 2021;
   

COUNT ONE

Statement of Offence

SEXUAL ASSAULT: contrary to Section 210(1) (b) (i) of the Crimes Act, 2009.

Particulars of Offence

NIKO LINO VEIQALI between the 1^st day of September 2020 and the 30^th day of September 2020 at Lovoni Village, Ovalau in the Eastern Division, unlawfully and indecently assaulted ALD by making ALD touch his penis.

COUNT TWO

Statement of Offence

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

Particulars of Offence

NIKO LINO VEIQALI between the 1^st day of September 2020 and the 30^th day of September 2020 at Lovoni Village, Ovalau in the Eastern Division, unlawfully and indecently assaulted ALD by making ALD by touching her vagina.

COUNT THREE

Statement of Offence

RAPE: contrary to Section 207(1) and (2) (a) and (3) of the Crimes Act, 2009.

Particulars of Offence

NIKO LINO VEIQALI on the 4^th day of October 2020 at Lovoni Village, Ovalau in the Eastern Division, penetrated the anus of ALD, a child under the age of 13 years, with his penis.

2. You have admitted the following summary of facts;
   • (i) That you are the Accused in this matter is Niko Lino Veiqali (hereinafter sometimes referred to as “the Accused”) and that you are 32 years of age.
   • (ii) The victim is ALD, (hereinafter sometimes referred to as “the child”), and that she was 11 years of age at the time of the offence and her date of birth is the 5^th of August 2010.
   • (iii) The child was raised by her grandparents but when she started class 4, she came to live with her mother and you. You are ALD’s step-father and at the time of the offending you were living in the same house at Ovalau with ALD and her mother.
3. That sometime between the 1^st day of September 2020 and the 30^th of September 2020, you called the child to your room and asked the child to bring in a leaf to clean your eyes. Then whilst you were lying down you told the child to clean your eyes a little later, you told the child ALD to touch your penis. You also admitted that when the ALD refused you grabbed ALD’s hand and forced her to touch your penis even though you knew that the child did not want to touch his penis and was afraid.
   
   4. Then again on the 4^th of October 2020, a Sunday, when ALD’s mother was away in Suva and other family members had gone to attend a church service and ALD stayed at home because she was having a headache and was lying in the sitting room. You too was lying in the sitting room and then you pulled down all the curtains and forcefully did undress ALD, separate her legs and penetrate ALD’s anus with your penis.
      
   5. You also admitted that in your Recorded of Interview, you told the Police that you knew the ALD was in pain because the ALD was wiggling to free herself. You also admitted telling the police that you did these things to the ALD because during your years of marriage, ALD was always be the reason for our fights. That you did this to give you comfort and as also sometimes when you ask your wife for sex, she wouldn’t. (Question No. 70),
      
   6. Upon duly considering the summary of facts read by the State Counsel which was understood and admitted by the accused and also upon perusing the caution interview this court is satisfied that the accused did enter unequivocal pleas of guilt on his own freewill.
      
7. This court is also satisfied that the accused did fully understand the nature of the charges and the consequences of so pleading guilty. The summary of facts read and admitted covers and satisfies all the elements of the offences of Sexual Assault and Rape as charged by counts 1 and 3 respectively which the Accused admitted as having committed.
   
8. In view of the aforesaid, this Court finds the accused guilty of counts 1 and 3 separately and he is accordingly convicted of the said counts 1 and 3 as charged. Both counsel filed comprehensive sentence/punishment and mitigation submissions which this court is grateful.
   
9. Mr. Niko Lino Veiqali, now you stand convicted on your own plea for one count of Sexual Assault, contrary to Section 210 (1) (a) of the Crimes Act which carries with it a maximum sentence of ten years imprisonment and one count of Rape, contrary to Section 207(1) and (2) (a) and (3) of the Crimes Act, which carries a maximum sentence of life imprisonment.
   
10. The two offences with which the Accused has been convicted and found guilty are founded on the same facts hence it is only proper that an aggregate sentence be imposed in view of Section 17 of the Sentencing and Penalties Act which is as follows:

“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.”

11. This is a case of sexual exploitation of a minor girl by a known person the step father, within her own domestic environment. Sexual exploitation of children within their own domestic environment by persons whose custody they are has become a social menace. Therefore, I find this offending is a severe crime.
    
12. In view of the severe nature of the crimes of this nature, the primary purpose of this sentence is founded on tinciple of deterrence. It i It is the responsibility of the Court to deter offenders or other persons from committing offences of the same or similar nature and protect the community from offenders of this nature. A harsh and long custodial sentence is inevitable for offences of this nature to demonstrate the gravity of the offence and reflect that civilised society denounces such crimes without any reservation.
    
13. Rape is a physical invasion committed on the victim under a coercive circumstance. Therefore, the degree of invasion of the victim's bodily integrity and sexual autonomy is an indispensable factor in determining the gravity and impact of the crime on the victim. The degree of invasion should be ascertained based on the level of harm and culpability.
    
14. The following personal details and mitigation have been submiby the counsel for the accused:
    1. The accused is a First offender;
    2. 32 years of age;
    100. is a farmer;
    4. Earns about $120.00 per week;
    5. Married, supports his wife and 3 children
15. However the Supreme Court in Anand Abhay Ra211;vs.- Ts.- The State, 003 of 2014 0;(20 Augu014)&#1i> opined that personrcumstancstances accused person has little mitigatory value in cases of sexual nature.

AGGRAVATING FACTORS

The aggravating factors are:

(a) Breach of Trust

The victim is the step daughter of the accused. He had the responsibility to protect the victim yet he grossly breached the trust of his step daughter by his actions.

(b) Victim was vuble

>

The accused knew the victim was alone in the house and he took advantage of the victim’s vulnerability and innocence especially when ss left alone at home. There is also some degree of planningnning and scheming by the accused as he had waited for the opportunity to be a lone with ALD and then the taken advantage of vulnerability of the child.

(c)

Thep>The victim was 11 years of age whereas the accused was 32 years of age. The age difference was substantial and significant.

(60;Exposing a child to sexual abuse

The accusaccused had exposed the victim to sexual activity at a very young age he basically robbed her of her innocence by exposing her to unexpected and unwelcomed sexual encounters.

(f) Prevalef the offence come committed

There has been an alarming increase in such offending by people who are mature adults ansely related to the victim.

17. The maximum penalty for the offence of rape is life imprisonment. The Supreme Court of Fiji in Gordon Aitcheson vs. tat State, (supra) has confithe new tariff forf for the rape of a juvenile to be a sentence between 11 years to 20 yearrisonment.
    
18. There has been an increase in sexual offences involving offenders who are known to the victim and are mature adults. It is shocking and abhorrent to note the manner in which the accused had committed these offences on the minor victim whom he should have protected.
    
19. Rape is one of the most humiliating and distressing crimes. It becomes more serious when it involves a child victim. Hence, I find the rape of this nature is a very serious crime. In this case, the complainant was sexually abused by a person who is known to her under whose care she was. This form of sexual exploitation of children by a known adult is an extremely serious offence.
    
20. Rape of a child being 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.
    
21. The Supreme Court in Mohammed Alfaaz v Sta60; [2018] FJSC 17; CAV0009.2018 (30 August 2018) has d thee in ollowing word words at paragraph 54 that:

“It is useful to refer to the observation expressed by iji Court of Appeal in Matasavui v State; Crim. App. No. AAU 0036 of 2013: 30 September&#16r [2016] FJCA 118 wherein court said that &#N220;No society can afford lerate an innermost feeling among the people that offendersnders of sexual offenders of sexual crimes committed against mothers, daug and sisters are not adequately punished by courts and such such a society will not in the long run be able to sustain itself as a civilised entity.”

22. The Supreme Court in Felix Ratate [2015] FJSC 26; CAV12.2015 (23 October 2015) mentioned a list of factorsctors that should be considered in punishing ffenders of child rape case cases. Those factors would include:

(a) whether the crime had been planned, or whether itincidental or opportunisticistic;

(b) whether there had been a breach of trust;

(c) whether committed alone;

(d) whether alcohol or drugs had been used to condition the victim;

(e) whether the victim was disabled, mentally or physically, or was specially vulnerable as a child;

(f) whether the impact on the victim had been severe, traumatic, or continuing;

(g) whether actual violence had been inflicted;

(h) whether injuries or pain had been caused and if so how serious, and were they potentially capable of giving rise to STD infections;

(i) whether the method of penetration was dangerous or especially abhorrent;

(j) whether there had been a forced entry to a residence where the victim was pre sent;

(k) whether the incident was sustained over a long period such as several hours;

(l) whether the incident had been especially degrading or humiliating;

(m) If a plea of guilty was tendered, how early had it been given. No discount for plea after victim had to go into the witness box and be cross-examined. Little discount, if at start of trial;

(n) Time spent in custody on remand.

(o) Extent of remorse and an evaluation of its genuineness;

(p) If other counts or if serving another sentence, totality of appropriate sentence.

23. The counts of sexual assault and rape for which this accused has been convicted are offences to some extent founded on the same facts and are of similar character. I therefore prefer to impose an aggregate sentence for the two offences in accordance with section 17 of the Sentencing and Penalties Act.

24. After assessing the objective seriousness of the offences committed I take 12 years imprisonment (lower range of the scale) as the starting point of the aggregate sentence. The sentence is increased for the aggravating factors, the personal circumstances and family background of the accused has little mitigatory value. However, I note that the accused has no previous convictions he comes to court as a person of good character hence the sentence is reduced for mitigation and good character.
    
25. Further, your counsel has informed the court that you have entered an early guilty plea and that you regret your action on the day in question. You have also been cooperating with the police during investigations after your arrest. The Court is mindful of the early admission of guilt by you as a mark of genuine remorse. You by pleading guilty to the charge you have saved court time and resources at a very early stage of the court proceedings as well as relieved the child of having to go through the ordeal and trauma of having repeat and re-live the unpleasant incident again. For all these grounds in mitigation, you should receive a considerable discount in the sentence. In this regard, I give you a reduction of one third in your sentence.
    
26. I also note from the court file and the submissions in mitigation that the accused has been in remand since 29^th September 2021up to date for 5 months and 16 days in exercise of my discretion and in accordance with section 24 of the Sentencing and Penalties Act the sentence is further reduced by 6 months as a period of imprisonment already served. In view of the above, the final aggregate sentence will be 8 years and 6 months imprisonment.
    
27. Having considered section 4 (1) of the Sentencing and Penalties Act and the serious nature of the offences committed on the victim who was the accused’s step daughter aged 11 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.
    
28. 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.
    
29. Considering the above, I impose 7 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.

Head Sentence

30. Accordingly, I sentence you to a period of nine (9) years imprisonment as an aggregate sentence for the count of Rape and the 3^rd count of Sexual Assault as charged in the information. Moreover, you are not entitled to parole for seven (07) years pursuant to Section 18 (1) of the Sentencing and Penalties Act.

Actual Period of the Sentence

31. You have been in remand custody for this case for nearly six (6) months before the sentence as the Court did not grant you bail. In pursuant to Section 24 of the Sentencing and Penalties Act, I consider six (6) months as a period of imprisonment that you have already served.
    
32. Accordingly, the actual sentencing period is eight (08)s and six (6) (6) months imnment with a non-paro-parole period of six (06) years and sixmo6) months.
    
33. Due to the closeness of the relatiolationship between the accused and the victim a permanent non-molestation and nntact orders are issued to d to protect the victim under the Domestic Violence Act.
    
34. 30 days to appeal to the Court of Appeal.
    

..........................................................
Justice K.M.G.H.Kulatunga

At Suva
15 March 2022

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