State v Masilevu - Sentence [2022] FJHC 433; HAC68.2021 (26 July 2022)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

Crim. Case No: HAC 68 of 2021

STATE

vs.

PAULA MASILEVU

Counsel: Ms. Luisa Latu for the State
Mr. R. Raj for the Accused

Date of Sentence Hearing: 06^th July, 2022
Date of Sentence: 26^th July, 2022

SENTENCE

(The name of the victim is suppressed she will be referred to as “E.K”)
Introduction

1. Your Paula Masilevu stood charged with three counts of rape of which you pleaded guilty to count No. 1 that of Rape contrary to Section 207(1) and (2) (b) and (3) of the Crimes Act, 2009 where you were alleged to have penetrated the vagina of E. K, a child below the age of 13 years, with your finger between the 1^st day of January 2020 and the 31^st day of December 2020, at Dreketi in the Northern Division.
   
2. You being aware and well advised of the legal effect and consequences, has plead guilty to count No. 1 that of digital rape in the presence of your Counsel. This Court is thus satisfied that you have fully comprehended the legal effects and that your plea was voluntary and free from influence.
   
3. The summary of facts read and explained on 5^th of July, 2022 reveals that the said offence of Rape was committed and you admitted the following summary of facts except the location of the incident (as to whether it was near the river or the house).
   
4. The facts so admitted are that:
   
   1. The child complainant in this matter is E. K, she was 11 years old in 2020, a student and residing at Nabiti village in Dreketi, Macuata and her date of birth is 1^st June, 2010. (vide the birth certificate).
   2. You Paula Masilevu, was 39 years in 2020 and is a farmer in Nabiti, Dreketi. And you are the first cousin of the child complainant’s mother.
   100. Yhe complainant calls you “Ta Paula”.
   4. You were charged with three counts of Rape contrary to section 207 (1) and (2) (b) and that you pleaded guilty to the first count.
   5. According to the child complainant on an unknown date in 2020, she was playing outside with some of her friends when you came and called out her name, telling her to go into his house where he had some snacks (bean) to give her.
   6. When the complainant entered your house, you grabbed her hand and asked her to clean his eye using a coconut husk. The complainant sat on the floor, the accused laid his head on her thighs and after sometime, you started touching the child complainant’s thighs and further put your hand inside her undergarment and then inserted your finger inside the child complainant “pi”, meaning her vagina. As a result the complainant stood up and ran home and she did not report the incident to anyone. At that time of the offending the complainant was under the age of 13 years, as confirmed by her birth certificate.
   7. This matter came into light on the 10^th of September, 2021 whilst the complainant was having breakfast at her Aunt Vasiti Sigabalavu’s house. Her aunt had asked her of what’s happening at the side of their place, this was the first time, the complainant told her aunt what you have done to her.
   8. On the 11^th of September, 2021, Vasiti Sigabalavu then relayed the information to the complainant’s mother, Sainimere Matavura, who then reported the matter to the Police.
   9. The child complainant was medically examined at Seaqaqa Health Centre on the 11^th of September, 2021 and it was noted that her hymen was not intact.
   10. On the 12^th of September, 2021, you were arrested and escorted to the Seaqaqa Police Station where you were interviewed under caution and you confessed to the allegation and you were charged thereafter.
   11. You did admit inserting your right pointing finger into the complainant’s vagina in questions and answers number 27 to 44 of your cautioned interview.
       
5. This Court is satisfied that, you did fully understand the nature of the charge and the consequences of pleading guilty and the summary of facts covers and satisfies all the elements of the offence of digital rape count No. 1. However as you have pleaded not guilty to counts No 2 and No. 3 this court will not in any way take notice of the fact of the existence of such charges in considering your sentence in respect of count No. 1.
   
6. This Court is satisfied that the admitted facts satisfy the ingredients of Rape as charged in count No. 1. Accordingly, this Court finds you guilty of Count 1 of Rape as charged on your own plea of guilt and convicts you for the said off Count 1 of Rape as charged.
   
7. The submissions on sentence and mitigation tendered by your Counsel and the State Counsel are comprehensive and certainly helpful.
   
8. Paula Masilevu, for the count of Rape contrary to Section 207 (1) and (2) (b) and (3) of the Crimes Act, 2009 of which you have been found guilty and stand convicted carries a maximum sentence of life imprisonment.
   
9. As for the said count of Rape, the occasion on which you inserted your finger to into the girl’s vagina in the period from the 1^st day of January 2020 and the 31^st day of December 2020 you were 39 years and the girl was 11 years of age. It is evident from the admitted facts that you have cunningly invited the unsuspecting girl on the pretext of getting her to clean your eye and touched her and then indecently and unlawfully inserted your finger in to her vagina.
   
10. This is a case of sexual exploitation of a young child by a known elder (uncle) from her own neighbourhood. 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 E.K the victim. Sexual exploitation of children within their own neighbourhood by known elders has become a social menace. Therefore, I find this offending serious.
    
11. In view of the serious 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 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 civilised society denounces such crimes without any reservation.
    
12. 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.”

13. Gates CJ 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.”

14. As the law stands now the tariff for the Rape of a child is between 11 - 20 years' imprisonment.
    
15. 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.
    
16. The victim impact report states that this crime has adversely affected the Complainant emotionally and psychologically. According to the Victim Impact Report, complainant has said that the offence has made her scared to death and shocked with what was done to her as she never expected anyone to insert anything into her vagina in this manner. It created a lot of fear and she feels uncomfortable when someone moves closer to her as what she experienced could not be forgotten easily as someone has invaded into her personal space in the privacy of her body which is very traumatic.
    

Sentence

17. Upon considering the gravity and the objective seriousness of the offence of Rape, to my mind it is reasonable to pick 12 years’ imprisonment as the starting point of your sentence for this offence. However, the final sentence will depend on the mitigating and aggravating factors which I will now proceed to consider.
    

The aggravating circumstances

18. I will start with considering the aggravating factors. I observe the following aggravating circumstances of your offending:

(i) There is a serious breach of trust. Your role was an uncle to a child vis-à-vis the victim and now it is proved that you raped her. You occupied a position of power and trust in relation to your niece. 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. E.K was vulnerable to your seniority in age and the familial standing. You were in a position of trust. As echoed in many a judicial pronouncement, 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 by a person from whom she was entitled to expect protection and care. 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 11 years old at the time you committed these offences and you were around 39 years so you were approximately 28 years her senior in age.

(iii) This involved some planning, scheming and premeditation.

(iv) You took advantage of the complainant’s vulnerability, helplessness and innocence.

(v) You have exposed the innocent mind of a child to sexual activity at such a tender age without any regard to her rights as a child, a human being and her right to live a happy unmolested and peaceful life.

(vi) You have caused misery to her mother and family.

19. I am inclined to add 4 years to the starting point for the above-mentioned aggravating factors bringing the interim sentence to 16 years imprisonment.
    

The mitigating factors

20. The mitigating factors in your favour are;

(i) That you are in a de facto relationship and is the care giver of the elderly parents and have been a farmer earning $100 to $150 per week. 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). pleaded guilty early and at the outset,

(IV). co-operated with the police and you are remorseful and seek forgiveness,

(iii). you are now around 41 years of age.

21. For all these grounds in mitigation, you should receive a considerable discount in the sentence. In this regard, I will consider a reduction 2 years for the previous good character and another 1 year for cooperating with the police which will bring down your sentence to 13 years. As for the early guilty plea I will deduct 4 years which is almost a 1/3^rd reduction which brings your sentences down to nine (9) years’ imprisonment.
    

Non-parole period

22. 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.
    
23. Considering the above, I impose 6 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

24. Accordingly, I sentence you for a period of nine (09) years’ imprisonment for the 1^st Count of Rape as charged in the information. However, you are not entitled to parole for 6 years pursuant to Section 18 (1) of the Sentencing and Penalties Act.

Actual Period of the Sentences

25. I also observe from the Court record and the submissions that you have been in remand since 10^th September 2021 up to date for 10 months and 16 days. In the exercise of my discretion and in accordance with section 24 of the Sentencing and Penalties Act the sentence is further reduced by 11 months upon it being considered as a period of imprisonment already served. In view of the above, the final sentence will be 8 years and 1 month period of imprisonment.
    
26. Having considered section 4 (1) of the Sentencing and Penalties Act and the serious nature of the offences committed compels me to consider 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.
    
27. Accordingly, the actual total period of your sentence is eight (08) years and one (01) month’s imprisonment with a non-parole period of five (05) year and one (01) month.
    
28. 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 this Court or any other competent Court is varied or suspended it. Furthermore, if you breached this restraining order, you will be charged and prosecuted for an offence pursuant to section 77 of the Domestic Violence Act.
    
29. You have 30 days to appeal to the Court of Appeal if you so desire.
    

...................................................
K.M.G.H.Kulatunga
JUDGE

At Suva (via Skype)
26^th July, 2022

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