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State v Tukai [2022] FJHC 164; HAC280.2021 (1 April 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION


Criminal Case No: HAC 280 of 2021


STATE


vs.


ONISIMO TUKAI


Counsel: Ms. M. Naidu for the State
Ms. R. Nabainivalu for Accused


Date of Submissions: 23 March, 2022
Date of Sentence 01 April, 2022


SENTENCE

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

  1. Your charges reads thus;

COUNT ONE
Representative Count
Statement of Offence


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


Particulars of Offence


ONISIMO TUKAI sometimes between the 1st day of January 2020 and the 21st day of November 2021 at Nasikeba Settlement, Naitasiri, in the Eastern Division, penetrated the vulva of MLM, a child under the age of 13 years, with his fingers.


COUNT TWO
Representative Count
Statement of Offence


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


Particulars of Offence


ONISIMO TUKAI sometimes between the 1st day of January 2020 and the 21st day of November 2021 at Nasikeba Settlement, Naitasiri, in the Eastern Division, unlawfully and indecently assaulted MLM, by kissing her on the lips and fondling her breasts.


  1. On 16th of March 2022, you pleaded guilty to the above counts in the presence of your Counsel. Then on 23rd of March 2022 the summary of facts was read and explained to you in the ITaukei language which you admitted.
  2. Accordingly, you have thereby admitted the following summary of facts;
    1. The complainant is MLM (“the complainant”), 9 years old (DOB: 23/07/13), Class 3 student at Navuakece District School and resides at Nasikeba settlement, Naitasiri.
    2. The accused is Onisimo Tukai (“the accused”) 21 years old (DOB: 03/06/00), iTaukei, Farmer of Nasikeba settlement, Naitasiri.
    3. There is a domestic relationship between the accused person and the complainant. The parties are known to each other as they are related, the accused is the complainant’s uncle and they reside in the same neighborhood namely Nasikeba settlement, Naitasiri.
    4. On 16 March 2022, the accused pleaded guilty to 1 representative counts of Rape contrary to section 207 (1) and (2) (b) & 1 representative count of Sexual Assault contrary to section 210 (1) (a) of the Crimes Act 2009.
    5. On 21st November 2021, the accused who was intoxicated at the time entered his cousin sister namely Mereani Matanatabuwa’s [“Mereani”] home which was a double story house and was calling out for the complainant downstairs; the complainant who was upstairs with Mereani made her way downstairs to the accused whom she referred to as “Ta Lailai”.
    6. The accused who was downstairs called the complainant into a room on the ground floor and once they were both inside, he took off his trousers and told her to take off her pants have sex with him and that if they have sex he would give her money; the accused then removed her panty touched the inside the complainants vagina with his hands, kissed her on the lips and fondled her breasts. The complainant later told ‘M’ what the accused had done to her and later informed police that the accused had done the said acts on more than one occasion.
    7. The accused was interviewed under caution by police on 23rd November 2021 at Vunidawa Police Station. Upon having the allegations put to him, he admitted to touching the complainant's vagina (Q&A 29-41), the accused further admitted to performing the same acts on her last year (Q&A 42-44). A copy of the caution interview is attached.
  3. Though you admit touching the vagina of the victim the particulars of the first count alleges that you penetrated the vulva of the complainant with your finger. Thus, does the summary of facts establish the actus reus of the first count of Rape? I don’t have to ponder on this issue as Prematilaka, JA., in Volau v State [2017] FJCA 51; AAU0011.2013 (26 May 2017) has considered a similar matter and articulated that it is well documented in medical literature that the vulva consists of the external organs one can see outside a female's body and the vagina, which is also known as the birth canal, is inside the body and only the opening of the vagina that can be seen from outside. Based on the said description, His Lordship opined that one has to necessarily enter the vulva before penetrating the vagina. Thus the admission that you touched the vagina of the victim necessarily amounts inferentially to an admission that you did penetrate the vulva of the complainant with your finger. Further you also did admit that you kissed her on the lips and fondled her breasts.
  4. The said summary of facts covers and satisfies all the elements of the offences of rape and sexual assault as charged by counts 1 and 2 respectively which you understood and admitted as having committed.
  5. Thus, upon considering the summary of facts in conjunction with the caution interview this Court is satisfied that you did enter unequivocal pleas of guilt on your own freewill having fully understood the nature of the charges and the consequences of so pleading guilty.
  6. Accordingly, I find you guilty of counts 1 and 2 on your own pleas of guilt and hereby convict you for each of the said counts separately. Both Counsel filed comprehensive sentence and mitigation submissions for which this court is grateful.
  7. Parliament has by section 207 (1) of the Crimes Act 2009 prescribed a maximum sentence of life imprisonment for the offence of rape as rape is viewed to be a serious offence. For the rape of a child, being a person less than 18 years of age, the tariff as determined by the Supreme Court in Gordon Aitcheson v The State, (Criminal Petition CAV 012 of 2018) is a sentence between 11 and 20 years imprisonment.
  8. The maximum penalty for Sexual Assault prescribed by section 207(1) & (2) (b) and (3) of the Crimes Act 2009 is 10 years imprisonment and the sentencing tariff for the Sexual Assault of a juvenile as now laid down in the case of State v Epeli Ratabacaca Laca [2012] FJHC 1414;252.2011S (23 April 2004) is between 2 years and 8 years imprisonment.
  9. Section 4(1) of the Sentencing and Penalties Act incorporates sentencing principles in the form of relevant factors that a Court should take into account during the sentencing process. They are:
      style='text-indent:0pt; margin-top:0pt; margin-bottom:0pt;'0pt;' value='1' > Deterrence- to deter the offender from breaking the law again and act as a warning to others not to do the same,
    1. Prevention- to prevent the offender from doing the same thing again.
    2. Rehabilitation- assist an offender to reform and not offend again.
    3. Punishment- to punish the offender for his or her criminal behavior; and
    4. Restoration- to restore or repair the damage done to others by the offender.
  10. I have duly considered the above factors in determining the sentence to be imposed on you, which is primarily to deter you or other persons from committing such offences and also to signify that the Court and the community denounce the committing offences of this nature.
  11. It is an admitted fact that the complainant is your niece who refers to you as Ta Lailai and that the complainant’s date of birth is 23rd July 2013. Therefore, as at the time offending, she was just 09 years of age and you were her uncle of 21 years of age. In determining the sentence in cases of this nature deterrence is of paramount importance.
  12. Section 17 of the Sentencing and Penalties Act 2009 (“Sentencing and Penalties Act”), reads thus;

“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.”


  1. The counts of sexual assault and rape for which you have been convicted are offences founded on the same facts and are of similar character. In accordance with section 17 of the Sentencing and Penalties Act, I consider it just and appropriate to impose an aggregate sentence for both the offences having based the final sentence on#160;cape count which is h is the most serious.
  2. In selecting a starting point, this Court is required to have regard to the objective seriousness of the offence and consider the culpability and the harm factors of your offending. Facts admitted shows that a degree of pre-planning was involved in your offending. You have entered the house of your sister Mereani, called the victim and taken her into a room and have induced the young child to have sex with you. Rape of children is a serious offence that appears to be prevalent in Fiji. Rape violates the dignity of the victim and is an unwarranted intrusion into both the privacy and the person of the victim. It has been repeatedly echoed in previous similar rulings that children must be protected and they must be allowed to develop to sexual maturity unmolested which I fully endorse. Upon considering the gravity and objective seriousness of the offences and as the count of Rape being the most serious sexual offence, to my mind it is reasonable and just to take 12 years imprisonment as the starting point for the aggregate sentence. However, as the final sentence will depend on the mitigating and aggravating factors, to start with let me now consider the aggravating factors first.
  3. The aggravating factors are as follows:

(i) You are the uncle of the victim being is your sister’s daughter who lived in the same village. As the uncle you were expected to protect her. Instead, you have breached the trust expected from you and the breach was gross and despicable. In pursuing a wicked plan to achieve your perverted sexual desires you have even offered money to lure the victim.

(ii) The complainant your niece was just 9 years of age at the time you committed this offence on her. You were 22 years of age thus you were elder by 13 years. Thus there was a considerable disparity in age between you and the complainant.

(iii) You have taken undue advantage of the complainant’s vulnerability and immaturity and you have exposed an innocent child to sexual activity at a very tender age.

(iv) You have offered money to your niece who was just 9 years of age the induce and encourage her to have sex with you.

(v) You are charged with representative counts and have admitted performing the same act twice (vide Q&A 42-44 of the caution interview) which is multiple offending during the said period of time.

Considering the aforementioned aggravating factors, I increase your sentence by a further 4 years. Now your sentence is 16 years imprisonment and now let’s consider the mitigating factors in your favour.

  1. Mitigating factors are as follows;

Accordingly, considering the aforesaid mitigating factors in your favour, I will reduce a period of 3 years from your aggregate sentence. Thus, your aggregate sentence now is 13 years imprisonment. Next, I will consider the early plea of guilt is which is a factor that requires my consideration at this stage.

  1. You did enter an early guilty plea at the very outset. The Court is mindful of and considers the early admission of guilt by you as an indicator and confirmation of genuine remorse. You by so pleading guilty to the charges have saved the time and resources of court and most importantly you have thus relieved the child of having to go through the ordeal and trauma of having to repeat and re-live the unpleasant incidents again. I will consider all these factors in your favour in mitigation which will entitle you to a considerable discount in the sentence. For the early guilty plea, I will rant a reduction of 4 years which is almost one third in your sentence. Now your aggregate sentence is 9 years imprisonment.
  2. Section 18 (1) of the Sentencing and Penalties Act (as amended) empowers and requires this Court to fix a non-parole period of which the object is to act as a deterrent to the others and for the protection of the community as well. As you are a young offender, whilst meeting out a punishment I think it is also necessary to afford you with every opportunity to undergo rehabilitation thus, a non-parole period too close to the final sentence will not be justified. Accordingly, I fix a period of 6 years as a non-parole period to be served before you are eligible for parole. To my mind the said non-parole period is appropriate in the rehabilitation of the accused which will meet the expectations of the community and is just in the circumstances of this case.
  3. Section 24 of the Sente and Penalties Acts Act endows and obligates this court to regard any period of time during which the offender was held in custody prior to trial as a period of imprisonment already served by ffender if and when such ofch offender is sentenced to a term of imprisonment. You were arrested for this case on 23 November 2021 and had been in custody up to date. That is a period of 4 months and 8 days. I hold that a period of 4 months be considered as being already served in terms of the provisions of Section 24 of the Sentencing and Penalties Act.
  4. For the sexual offences you committed against the 09-year-old complainant, between 1st January 2020 and 21st November 2020 to 27 November 2020, at in Nasikeba settlement in Naitasiri, I sentence you to 8 years and 8 months imprisonment in aggregate, with a non-parole period of 6 years imprisonment.
  5. Accordingly, your final sentence is as follows:

Head Sentence – 9 years imprisonment.
Non-parole period - 6 years imprisonment.

Considering the time you spent in remand, the time remaining to be served is as follows:
Head Sentence - 8 years and 8 months imprisonment.
Non-parole period - 5 years and 8 months.

  1. The complainant’s name is permanently suppressed to protect her privacy.
  2. You have 30 days to appeal to the Court of Appeal if you so wish.

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


At Suva
01 April 2022


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


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