State v Ravula - Sentence [2022] FJHC 414; HAC75.2021 (8 July 2022)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION
Criminal Case No.: HAC 75 of 2021

BETWEEN: STATE

AND: SIMIONE RAVULA

Counsel: Ms E. Thaggard for the State
Ms R. Raj for the Accused

Date of Trial: 04 – 05 July, 2022
Date of Judgment: 06 July, 2022
Date of Sentence/Mitigation Submission: 07 July, 2022
Date of Sentence: 08 July, 2022

SENTENCE

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

Introduction

1. Mr. Simione Ravula, out of the 8 counts preferred, you pleaded guilty to counts 1, 5 and 7 of Sexual Assault and was convicted on your own pleas for the said three counts and this court after trial found you guilty and convicted of counts 2 and 4 of Rape contrary to Section 207 (1) and (2) (b) and (3) of the Crimes Act and count 8 of Rape contrary to Section 207 (1) and (2) (a) of the Crimes Act, 2009. However, due to lack of evidence, you were acquitted of counts 3 and 6. Both parties consented and agreed that sentencing of counts 1, 5 and 7 be considered upon the conclusion of the trial. Accordingly, I will now proceed with sentencing you in respect of counts 1, 5 and 7 together with counts 2, 4 and 8.
   

Circumstances of the offending

2. The complainant A.V, born on 31^st August 2007 was 10 years in 2017. You are married to A.V’s mother is Ditokasa. You are thus her stepfather. A.V, her siblings, her mother, the maternal grandmother and you, were all living together at Nakelikoso village since A.V was 4 years old.
   
3. The 5 charges you were convicted are in respect several acts of sexual abuse you committed during 3 years and 3 months between 1^st September 2017 to 31^st December 2020. Now, if I may recap the said acts, you in 2017 when A.V was asleep in a room you have taken off her panty lustfully touched her body and licked her vagina. After so touching and licking her vagina you tell her to lie face downwards and inserted your penis into her vagina from her rear and then you tell her that this should not be told to anyone. You continue with your lustful escapade of licking and touching in 2018 and then in 2019 too, you touch and lick her vagina and then inserted your penis into her vagina from behind. Then you shamelessly ask her if she liked it. Then in 2020, when A.V was sick and suffering from a stomach-ache in the guise of rubbing her stomach you put your hand down under the skirt and touched her vagina. Finally, when A.V’s mother had gone out to catch fresh water fish whilst A.V was sleeping you wake her up and say that you want to lick her vagina then take off her panty and lick her vagina and shamelessly ask her whether if she liked it. Then you get her to touch your private part make her lie face downward, and inserted the penis into her vagina as done before.
   
4. You have continued to commit the said perverted sexual acts for 3 years and have artfully and cunningly continued to use this minor girl to satisfy your perverted desire of licking the prepubescent vagina of A.V. These sordid acts I was reluctantly compelled to reproduce to lay the bare facts of this offending.
   

Sentencing regime

5. The maximum penalty prescribed for both, Rape contrary to Section 207 (1) and (2) (b) and (3) as well as for Rape contrary to Section 207 (1) and (2) (a) of the Crimes Act is life imprisonment as this undoubtedly is considered to be a very serious offence. The tariff is between 11 years and 20 years imprisonment. Determining the said applicable tariff Gates C.J., in Aitcheson v. State ([2018] FJSC 29; CAV0012.2018 (2 November 2018) held that,
   

“The tariff previously set in Raj v The State [2014] FJSC 12 CAV0003.2014 (20^th August 2014) should now be between 11-20 years imprisonment. Much will depend upon the aggravating and mitigating circumstances, considerations of remorse, early pleas, and finally time spent on remand awaiting trial for the final sentence outcome. The increased tariff represents the denunciation of the courts in the strongest terms.”

6. As for sexual assault in State v Laca - Sentence [2012] FJHC 1414; HAC252.2011 (14 November 2012), Justice Paul Madigan considering the tariff for the offence of sexual assault stated thus,
   

“6. The maximum penalty for this offence is ten years imprisonment. It is a reasonably new offence, created in February 2010 and no tariffs have been set, but this Court did say in Abdul Kaiyum HAC 160 of 2010 that the range of sentences should be between two to eight years. The top of the range is reserved for blatant manipulation of the naked genitalia or anus. The bottom of the range is for less serious assaults such as brushing of covered breasts or buttocks.

7. A very helpful guide to sentencing for sexual assault can be found in the United Kingdom's Legal Guidelines for Sentencing. Those guidelines divide sexual assault offending into three categories:

Category 1 (the most serious)

Contact between the naked genitalia of the offender and naked genitalia face or mouth of the victim.

Category 2

(i) Contact between the naked genitalia of the offender and another part of the victim's body;
(ii) Contact with the genitalia of the victim by the offender using part of his or her body other than the genitalia, or an object;
(iii) Contact between either the clothed genitalia of the offender and the naked genitalia of the victim; or the naked genitalia of the offender and the clothed genitalia of the victim.

Category 3

Contact between part of the offender's body (other than the genitalia) with part of the victim's body (other than the genitalia)”.

7. The maximum penalty for the offence of sexual assault under Section 210 (1) (a) is ten years imprisonment. As the law stands now the tariff for sexual assault is between 2 - 8 years' imprisonment.
   

Objective seriousness, culpability and harm of the offending

8. In the case of State v. Tauvoli [2011] FJHC 216; HAC 27 of 2011 (18 April 2011); His Lordship Justice Paul Madigan stated:
   

“Rape of children is a very serious offence indeed and it seems to be very prevalent in Fiji at the time. The legislation has dictated harsh penalties and the Courts are imposing those penalties in order to reflect society's abhorrence for such crimes. Our nation's children must be protected and they must be allowed to develop to sexual maturity unmolested. Psychologists tell us that the effect of sexual abuse on children in their later development is profound.”

9. Rape as well as sexual assault are physical invasions 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.
10. You have been found guilty of a series of sexual crimes of utmost gravity. The offences involved the exploitation and abuse of a vulnerable child over a long period of time. There are many features that aggravate the culpability and harm factors. You subjected her to repeated abuse in a perverse form. The victim was threatened, coerced and intimidated to facilitate the commission of the offences and to make the likelihood of her reporting them remote. You had power over the child. If the child showed reluctance, you enforced compliance with threats (threat to kill). You as the step father was in control and in a position to enforce your power over her as you were married to her mother and thus guardian of A.V. The complainant felt both fear and misguided loyalty to you. She was reluctant to tell others what you were doing to her. No doubt this encouraged you to carry on your depraved conduct for over 3 years taking advantage of the opportunities you had whilst living in the same house.
11. The victim impact report states that this crime has adversely affected the Complainant emotionally and psychologically. According to the Victim Impact Report, the victim A.V states that she felt uneasy and a suffered from anxiety due to the “disgusting and hurtful experience”, she went through and was exposed to by you whom she trusted. She was afraid to be alone and at times had nightmares. She had isolated herself as she was ashamed as it was unbearable when her classmates ask her as to what was done to her. She has lost concentration in school and her mind wonders trying to cope with the situation she was in. A.V finally states that it is very difficult to forget the “horrible memories which she was exposed to at a very young age that takes away her right to her body”.
    
12. Hence without doubt this crime has caused mental and psychological trauma and affected her self-confidence. Thus, the level of harm of this offence is significantly high. It is clear from the victim impact statement that your offending has had a very significant and long-lasting psychological impact on this vulnerable minor child which I am required to take in to consideration in sentencing.
    
13. In view of the serious nature and the prevalence of crimes of this nature, the primary purpose of this sentence is founded on the principle of deterrence. It is the responsibility of this Court to deter offenders or other persons from committing offences of the same or similar nature and protect the community especially the children 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 civilized society denounces such crimes without any reservation.

The aggravating circumstances

14. (i) There is a serious breach of parental trust. Your role was parent to a child vis-à-vis the victim and now it is proved that you sexually abused and raped her. You occupied a position of power and trust in relation to your stepdaughter. Such a position of power over the other who is a minor renders such sexual activity morally wrong and punishable within the realms of the criminal law. A.V was vulnerable to your seniority in age and the familial standing due to your marital affinity with her mother. You were in a position of trust. The culture and the rich traditions of the Fijian society expects you to protect little children in the community and the elders enjoy the respect and veneration of the young. You taking advantage of this rich culture sexually exploited A.V a minor child. As echoed in many a judicial pronouncement, sexual exploitation of children within their own home by known elders has become a social menace. Therefore, I find this offending is a severe crime. The rape of a child is an appalling and perverse use of male power exploiting to the full the position of power which you held over her. She was raped and molested in the safety of her own home so to say, by a person from whom she was entitled to expect protection. You violated the trust which the complainant and her mother placed in you and abused that position of trust.
    

(ii) There was a considerable disparity in age between you and the complainant. The complainant was between 10 and 13 years old at the time you committed these offences and you were between 57 and 60 years so you were 47 years her senior in age.

(iii) You sexually abused her and raped her multiple times during 2017 and 2020

(iv) This involved planning, long term scheming and premeditation.

(v) You took advantage of the complainant’s vulnerability, helplessness and naivety.

(vi) You have exposed the innocent mind of a child to sexual activity at such a tender age you had no regard to her right as a child, her right as a human being and her right to live a happy unmolested and peaceful life.

(vii) You have caused misery to her mother and family.
The mitigating factors

15. (i). The mitigating factors in your favour are that you are married to A.V’s mother and

looking after the children. You have been a farmer by profession. Unfortunately, these are all personal circumstances which are usually not considered as mitigating circumstances.

(ii). As per the Antecedent Report filed, it is noted that neither do you have any previous conviction nor pending cases. Therefore, Court considers you as a person of previous good character.

(iii). Though you abused the victim you have not acted in any extreme cruel manner nor resorted to or used extreme force or violence on the victim.

(iv). You pleaded guilty to some of the charges at the commencement of the trial, this indicates some form of remorse and acceptance of your wrongdoing to some extent.

(v). You are now 62 years of age now.
Aggregate sentence of imprisonment

16. 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.”

17. The offences of sexual assault for which you have been convicted upon pleading guilty as

well as the offences of 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 all six counts having the Rape count as the base sentence as it is the most serious of the six offences.

Sentence

18. The least possible aggregate sentence I can impose, having regard to the aggravating and mitigating factors of the case, will be as follows. Tariff for rape is 11-20 years. I pick and start with the aggregate sentence of 12 years imprisonment. I add a 4 years for the aggravating factors, making the total aggregate sentence 16 years imprisonment. For all the grounds in mitigation, you should receive a considerable discount in the sentence thus, I deduct 2 years which inter alia is for your previous good character and also some minor consideration for pleading guilty to sexual assault counts. I also took into consideration that you are 62 years of age now. This will leave a balance of 14 years imprisonment.
19. In view of the reasons discussed above, I impose on you an aggregate sentence fourteen (14) year’s imprisonment for the three offences of sexual assault and three offences of rape for which you stand convicted.
20. Having considered the seriousness of this crime, the purpose of this sentence, and opportunities for rehabilitation, I find that ten (10) year non-parole period would serve the purpose of this sentence. Hence, you are not eligible for parole for ten (10) years pursuant to Section 18 (1) of the Sentencing and Penalties Act.

Head Sentence

21. Accordingly, I sentence you to a period of fourteen (14) years imprisonment being an aggregate sentence for the three offences of sexual assault and three offences of rape for which you were found guilty and convicted. However, you are not entitled to parole for ten (10) years pursuant to Section 18 (1) of the Sentencing and Penalties Act.

Actual Period of the Sentence

22. You were arrested for this case on 08^th February 2021 and since then have been in remand as bail had not been granted. You have been in custody for a period of 1 year and 5 months. In terms of the provisions of Section 24 of the Sentencing and Penalties Act I hold that the said period of 1 year and 5 months be considered as imprisonment that you have already served.
    
23. Accordingly, the actual sentencing period of your aggregate sentence is twelve (12) years and seven (07) months imprisonment with a non-parole period of eight (08) years and seven (07) months.
    
24. Pursuant to section 4 (1) of the Sentencing and Penalties Act 2009, the above sentence is meted out to punish you in a manner that is just in all the circumstances, to protect the community, deter like-minded offenders and to manifest that the court and the community denounce what you did to the minor complainant A.V.
    
25. Since this incident involves domestic violence, I am satisfied that there are sufficient grounds to consider 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 it is varied or suspended by this Court or any other competent Court. Furthermore, if you breach this restraining order, you will be charged and prosecuted for an offence pursuant to section 77 of the Domestic Violence Act.
    

26. The complainant’s name is permanently suppressed to protect her privacy.
27. You have thirty (30) days to appeal to the Fiji Court of Appeal if you so desire.

...................................................
Justice K.M.G.H.Kulatunga
At Labasa
08^th July 2022

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