State v Vesasio [2022] FJHC 133; HAC087.2020 (23 March 2022)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 87 of 2020

BETWEEN: STATE PROSECUTION

AND: MOSESE VESASIO

ACCUSED PERSON

Counsel: Ms. Lomaloma M. with Ms. Latu L. and Ms. Thaggard E. for State Ms Kirti V. with Ms. Raj R. for Accused

Date of Hearing: 21 March 2022
Date of Sentence: 23 March 2022

SENTENCE

1. Mr Mosese Vesasio, you pleaded guilty to one count of Rape, contrary to Section 207 (1) and (2) (a) and (3) of the Crimes Act, which carries a maximum punishment of life imprisonment and one count of Rape, contrary to Section 207 (1) and (2) (b) and (3) of the Crimes Act, which carries a maximum punishment of life imprisonment. The particulars of the offences are that;

Statement of Offence

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

Particulars of Offence

MOSESE VESASIO, on the 6^th day of December 2020, at Taveuni in the Northern Division, had carnal knowledge of MEREANI NAMOCE a child under the age of 13.

Count 2

Statement of Offence

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

Particulars of Offence

MOSESE VESASIO, on the 6^th day of December 2020, at Taveuni in the Northern Division, penetrated the vulva of MEREANI NAMOCE a child under the age of 13 with his tongue.

2. Satisfied by the fact that you have fully comprehended the legal effect of your plea and your plea was voluntary and free from influence, I now convict you of these two offences of Rape.
3. According to the summary of facts you admitted in open Court, you had penetrated the vagina of the Complainant with your penis on the 6th of December 2020, at Vurevure Village, Bouma, Taveuni. You had then penetrated the vulva of the Complainant with your tongue. The Complainant is your first cousin. She was eleven years old in 2020 and living with her grandmother. On the 6th of December 2020, at around 4.30 p.m., you were sleeping in the first room of the grandmother's house when the Complainant came home from the Church to pick up her cardigan. The Complainant went to the room where you were sleeping to look for her cardigan. You grabbed and laid her on the mattress then. You then penetrated her vagina with your penis and then licked her vagina with your tongue.
4. Offences of sexual nature are one of the humiliating and distrg crimes. It violates the physical self and destroys the personal dignity and self-autonomyonomy of a person. This is a case of an elderly male cousin using his young female cousin for surrogate sexual gratification. The social enigma of abusing children for sexual gratification by their family members needs to address promptly and effectively. Therefore, I find this is a grave crime.

Purpose of the Sentence

5. In view of the severe nature of the crimes of this nature, the primary purpose of this sentence is founded on the principle of deterrence. 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.
6. These two counts of Rape are founded on the same series of offending with similar characters. Therefore, I find it is appropriate to impose an aggregate sentence pursuant to Section 17 of the Sentencing and Penalties Act.
7. Gates CJ in Aitcheson v State;(<60;( [2018] FJSC 29; CAV0012.2018 (the 2nd of November 2018) held that the tariff for the Rape of a child is between 11 - 20 years' imprisonment period0;
8. Rape is a physical invasion committed on the victim under a coercive circumstance. (vide The Prosecutor V Jean-Paul Akayesu Case No ICTR-96-4-T). Hence, it is an offence against personal liberty and rights to have a private life. 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 victimisation of bodily integrity should be ascertained based on the level of harm and culpability.
9. The victim impact report states that this crime has adly affected the Complainant emotionally and psychologically. Her personal and social lifestifestyle has changed adversely after this incident. According to the Victim Impact Report, this crime has shattered her self-confidence, thus making her a withdrawn and isolated person. Therefore, I find that the level of harm in this offence is exceedingly high.
10. You had meticulously carried out this sexual assault on the Conant when she was not in a position to escape or seek assistance from others. You found thed the opportunity when the Complainant was alone in the room looking for her cardigan. You had subdued her resistance using your physical strength. I accordingly find that the level of culpability is profoundly high in this crime.
    11. Having considered the seriousness of the crime, the purpose of the sentence, the level of culpab and harm, it is my opinion that this is a suitable case whse where the Court should select the starting point at the mid-range of the tariff. Hence, I select fourteen (14) years as the starting point.
12. The Complainant is your first cousin. You had abused the trust and relationship she had in you as her cousin. By doing this crime, you have destroyed one of the safest places she had in her young life: her grandmother's home. The age difference between you and the Complainant is substantially-high. By committing this crime, you have exposed this eleven-year-old child to sexual activities at a very young age, thus preventing her from having a natural growth of maturity in her life. I consider these reasons as aggravating factors of this offence.
In her mitigation submissions, the learned Counsel for the Defence submittur personal and family background, which has no mitigatory tory value.
14. The learned Counsel for the Defence submitted that you are a first offender; hence, you aretled to a substantive discount. I find that your previous gous good character, especially the fact that you have not been tainted with any previous conviction for an offence of sexual nature, would have allowed you to freely move around in the community without any suspicion of risk. The community has perceived you as a man of good character and not as a child paedophile and allowed you to be with your female relatives freely. Moreover, there is no suggestion that you have significantly contributed to the community or have any reputation in the community as per Section 5 of the Sentencing and Penalties Act. Therefore, I do not find your previous good character has any significant mitigatory value. Hence, you are only entitled to an insubstantial discount for your previous good character. <
15. You pleaded guilty to these two offences on the date of the hearing. Hence, I do not consider this is an early plea of guilty at the first available opportunity. Indeed, in pleading guilty, you have saved the time of the Court and especially prevented the child complainant from recalling this traumatic ordeal in evidence. Hence, you are entitled to a certain discount for your guilty plea.
16. In view of the reasons discussed above, I increased four (04) years for the aggravating factors to reach an interim period of eighteen (18) years. Because of your previous good character, I give you one (1) year discount and three (3) years discount for your plea of guilty, making fourteen (14) years imprisonment as your final sentence.
17. Having considered the seriousness of this crime, the purpose of this sentence, and opportunities for rehabilon, I find twelve (12) year years of non-parole period would serve the purpose of this sentence. Hence, you are not eligible for parole for twelve (12) years pursuant to Section 18 (1) of the Sentencing and Penalties Act.

Head Sentence

18. Accordingly, I sentence you to fourteen (14) years imprisonment as an aggregate sentence for these two counts of Rape as charged in the information. Moreover, you are not entitled to parole for twelve (12) years pursuant to Section 18 (1) of the Sentencing and Penalties Act.
    

Actual Pual Period of the Sentence

19. You have been in remand custody for this case for nearly one (1) year, ear, three (3) months and fifteen (15) days before the sentence as the Court did not grant you bail. In pursuant to Section 24 of the Sentencing and Penalties Act, I consider one (1) year and three (3) months as a period of imprisonment that you have already served.
20. Accordingly, the actual sentencing period is twelve (12) yand nine (0ne (09) months imnment with a non-paro-parole period of ten (10) years and nin) (09) months.&#16i>
21. S21">Since this incident involves domestic violeI am satisfied that there are sufficient grounds to considensider making an order under the Domestic Violence Act. I accordingly make a permanent Domestic Violence Restraining Order against you with standard non-molestation conditions and no contact conditions pursuant to Section 24 and 28 of the Domestic Violence Act. The above Domestic Violence Restraining Order will be in force until this Court, or any other competent Court, is varied or suspended. Furthermore, if you breached this restraining order, you will be charged and prosecuted for an offence under section 77 of the Domestic Violence Act.

22. Thirty (30) day) days to appeal to the Fiji Court of Appeal.

Hon. Mr. cestice R.D.R.T. Rajasinghe

At Labasa/b>
23 March 2022

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