State v Matakitoga - Sentence [2022] FJHC 145; HAC037.2021S (25 March 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 037 OF 2021S

STATE

vs

RUSIATE MATAKITOGA

Counsels : Mr. S. Komaibaba for the State
Mr. T. Varinava for the Accused
Hearings : 21, 22 and 23 March, 2022.
Judgment : 24 March, 2022.
Sentence : 25 March, 2022.

SENTENCE

1. In a judgment delivered yesterday, you were found guilty and convicted on the following counts, in the following amended information:
   

“First Count

Statement of Offence

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

Particulars of Offence

RUSIATE MATAKITOGA on the 24^th day of November, 2020 at Natokalau Village, Ovalau, in the Eastern Division, unlawfully and indecently assaulted AK by licking her vagina.

Second Count

Statement of Offence

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

Particulars of Offence

RUSIATE MATAKITOGA on the 25^th day of November, 2020 at Natokalau Village, Ovalau, in the Eastern Division, unlawfully and indecently assaulted AK by licking her vagina.

Third Count

Statement of Offence

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

Particulars of Offence

RUSIATE MATAKITOGA on the 26^th day of November, 2020 at Natokalau Village, Ovalau, in the Eastern Division, unlawfully and indecently assaulted AK by licking her breasts.

Fourth Count

Statement of Offence

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

Particulars of Offence

RUSIATE MATAKITOGA on the 26^th day of November, 2020 at Natokalau Village, Ovalau, in the Eastern Division, had carnal knowledge of AL without her consent.

Fifth Count

Statement of Offence

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

Particulars of Offence

RUSIATE MATAKITOGA on the 27^th day of November, 2020 at Natokalau Village, Ovalau, in the Eastern Division, had carnal knowledge of AL without her consent.”

2. The brief facts, as found by the court, after a defended hearing, were as follows. The female complainant (PW1) was 15 years old at the time of the offences. You were 58 years old at the time. You had been married to the complainant’s mother (PW2) for 8 years. PW2 had previously married, and had 4 children from that marriage. The children were aged between 18 and 11 years old. You resided with the complainant (PW1), the complainant’s mother (PW2), PW2’s 11 year old son and the complainant’s uncle, in a two bedroom house. You, your wife (PW2), the complainant (PW1) and her 11 year old brother shared a bedroom in the house.
   
3. Between 24 and 27 November 2020, you committed various sexual offences against the complainant. She was your stepdaughter at the time. The offences were all committed in the family bedroom, when the complainant’s mother, your wife, was away. You started the sexual attacks on the complainant on the night of 24 November 2020 (count no. 1). While she was asleep, you secretly undressed her and licked her vagina. On 25 November 2020 (count no. 2), you repeated the above episode when the complainant returned from school after 4 pm. On 26 November 2020 (count no. 3), you forced yourself on the complainant by undressing her top and then licked her breasts for about 10 minutes. You attacked her after she returned from school after 4 pm.
   
4. On the same day, after PW1 completed her homework after 7.15 pm, she went to bed (count no. 4). You went to her and forced yourself on her. You had sexual intercourse with her without her consent and you knew at the time that she was not consenting to the same. Afterwards, you threatened her not to reveal the above to anyone. On 27 November 2020 (count no. 5), you repeated the above episode to the complainant, after she returned from school. You had been tried by the High Court and found guilty of all the above crimes.
   
5. The offence of rape carried a maximum sentence of life imprisonment (see Section 207 (1) of the Crimes Act 2009.). Parliament therefore views the offence as a serious one. It violates the dignity of a person. It is an unwarranted intrusion into the privacy of a person. It is an ultimate act of showing utter disrespect to a person. Therefore those who commit this offence, must expect a lengthy prison sentence to restore the balance, the harmony and atonement to the victim. For the rape of child, that is, anyone less than 18 years old, the tariff is a sentence between 11 and 20 years imprisonment. I refer to the authority of Gordon Aitcheson v The State, Criminal Petition CAV 012 of 2018, Supreme Court of Fiji. Of course, the final sentence will depend on the mitigating and aggravating factors.
   
6. “Sexual Assault”, contrary to section 210 (1) (a) of the Crimes Act 2009, carried a maximum penalty of 10 years imprisonment.
   
7. The aggravating factors in this case, were as follows:
   • (i) Serious Breach of Parental Trust. You were 58 years old at the time. The female complainant was 15 years old at the time. There was a 43 year age gap between the two of you. At the time, you had been married to the complainant’s mother for 8 years. The complainant was therefore your stepdaughter. You had been looking after her since she was 7 years old. As a stepfather, she trusted you and looked to you for guidance. Yet you did the unthinkable, by sexually abusing her and raping her twice in November 2020. During the trial, you admitted that what you did to the complainant was wrong in god’s eyes. You had seriously breached her trust in you. You must therefore accept that you will have to be punished, for violating the trust the complainant had in you, by an immediate custodial sentence.
   • (ii) The offences were premeditated and pre-planned. After seriously looking at the facts, it was obvious that you planned the sexual attacks on your stepdaughter. You watched her grown into a young girl from the age of 7 years. From 24 November 2020, you began to reveal your sick plans. You started by sexually assaulting her on 24, 25 and 26 November 2020, by licking her vagina, than her breasts. On 26 and 27 November 2020, you unveiled your sick plans by raping her twice. You were obviously cunning and devious. For that, you must not complain when you are punished for the crimes you have committed on the child.
   • (iii) Rape of children. Unfortunately, this problem is becoming prevalent in our society, despite the heavy prison sentence passed by the courts for the rape of children. The court had said in the past, and will keep on saying that it will not tolerate the abuse of children in our society. As it had done in the past, and now is doing and will continue to do, it will pass heavy prison sentences for the rape of children, as a warning to others.
   • (iv) By offending against the complainant, you had no regards to her right as a child, her right as a human being and her right to live a happy and peaceful life.
   • (v) You had caused untold miseries to her family.
     
8. The mitigating factors were as follows:
   • (i) At the age of 59 years, this was your first offence;
   • (ii) You had been remanded in custody since 26 January 2021 until you were released on bail on 28 October 2021, that is, approximately 9 months 2 days.
     
9. We will start with the serious offence of rape. On count no. 4 (rape), I start with a sentence of 12 years imprisonment. I add 5 years for the aggravating factors, making a total of 17 years imprisonment. For time already served while remanded in custody, I deduct 10 months, leaving a balance of 16 years 2 months. For being a first offender at the age of 58 years old, I deduct 3 years 2 months, leaving a balance of 13 years imprisonment. On count no. 4 (rape), I sentence you to 13 years imprisonment.
   
10. For count no. 5 (rape), I repeat the process and sentence in count no. 4 (rape).
    
11. For count no. 1 (sexual assault), I sentence you to 4 years imprisonment.
    
12. For count no. 2 and 3 (sexual assaults), I repeat the process and sentence in count no. 1, for each count.
    
13. The summary of your sentences are as follows:
    • (i) Count No. 1 - Sexual Assault - 4 years imprisonment.
    • (ii) Count No. 2 - Sexual Assault - 4 years imprisonment.
    • (iii) Count No. 3 - Sexual Assault - 4 years imprisonment.
    • (iv) Count No. 4 - Rape - 13 years imprisonment.
    • (v) Count No. 5 - Rape - 13 years imprisonment.
      
14. Because of the totality principle of sentencing, I direct that all the above sentences be made concurrent to each other, making a final total sentence of 13 years imprisonment.
    
15. Mr. Rusiate Matakitoga, for the sexual offences you committed against the 15 year old complainant, between 24 to 27 November 2020, at Natokalau Village, Ovalau, in the Eastern Division, I sentence you to 13 years imprisonment, with a non-parole period of 11 years imprisonment, effective forthwith.
    
16. Pursuant to section 4 (1) of the Sentencing and Penalties Act 2009, the above sentence is designed to punish you in a manner that is just in all the circumstances, protect the community, deter like-minded offenders and to signify that the court and the community denounce what you did to the 15 years old complainant between 24 to 27 November 2020 at Natokalau Village, Ovalau in the Eastern Division.
    
17. The 15 years old complainant’s name is permanently suppressed to protect her privacy.
    
18. You have 30 days to appeal to the Court of Appeal.
    

Salesi Temo
JUDGE

Solicitor for State : Office of the Director of Public Prosecution, Suva
Solicitor for Accused : Legal Aid Commission, Suva.