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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION
CRIMINAL CASE NO: HAC 077 OF 2020LAB
STATE
V
JOSAIA NAIKALIVOU
Counsels : Ms. L. Latu and Ms. M. Lomaloma for State
Ms. R. Raj and Ms. V. Kirti for Accused
Hearings : 31 January, 1, 2, 3, and 4 February, 2022
Judgment : 8 February, 2022
Sentence : 11 February, 2022
SENTENCE
COUNT ONE
Statement of Offence
SEXUAL ASSAULT: Contrary to Section 210 (1) (a) of the Crimes Act 2009.
Particulars of Offence
JOSAIA NAIKALIVOU, between the 1st of January 2019 and the 31st day of December 2019, at Burenicagi Settlement, Naweni in the Northern Division, unlawfully and indecently assaulted “V.B.”, by fondling her breasts.
COUNT TWO
Statement of Offence
INDECENT ASSAULT: Contrary to Section 212 (1) of the Crimes Act 2009.
Particulars of Offence
JOSAIA NAIKALIVOU, between the 1st of January 2019 and the 31st day of December 2019, at Burenicagi Settlement, Naweni in the Northern Division, unlawfully and indecently assaulted “V.B.”, by touching her thighs.
COUNT THREE
Statement of Offence
INDECENT ASSAULT: Contrary to Section 212 (1) of the Crimes Act 2009.
Particulars of Offence
JOSAIA NAIKALIVOU, between the 1st of January 2019 and the 31st day of December 2019, at Burenicagi Settlement, Naweni in the Northern Division, unlawfully and indecently assaulted “V.B.”, by touching her mouth
COUNT FOUR
Statement of Offence
RAPE: Contrary to Section 207 (1) and (2) (b) of the Crimes Act 2009.
Particulars of Offence
JOSAIA NAIKALIVOU, between the 1st of January 2020 and the 31st day of August 2020, at Burenicagi Settlement, Naweni in the Northern Division, penetrated the vagina of “V.B.”, with his finger without her consent.
.
COUNT FIVE
Statement of Offence
RAPE: Contrary to Section 207 (1) and (2) (a) of the Crimes Act 2009.
Particulars of Offence
JOSAIA NAIKALIVOU, between the 1st of January 2020 and the 31st day of August 2020, at Burenicagi Settlement, Naweni in the Northern Division, had carnal knowledge of “V.B.”, without her consent.
COUNT SIX
Statement of Offence
RAPE: Contrary to Section 207 (1) and (2) (a) of the Crimes Act 2009.
Particulars of Offence
JOSAIA NAIKALIVOU, on an occasion other than that referred to in Count 5 between the 1st of January 2020 and the 31st day of August 2020, at Burenicagi Settlement, Naweni in the Northern Division, had carnal knowledge of “V.B.”, without her consent.
COUNT SEVEN
Statement of Offence
RAPE: Contrary to Section 207 (1) and (2) (a) of the Crimes Act 2009.
Particulars of Offence
JOSAIA NAIKALIVOU, on an occasion other than that referred to in Count 5 and Count 6 between the 1st of January 2020 and the 31st day of August 2020, at Burenicagi Settlement, Naweni in the Northern Division, had carnal knowledge of “V.B.”, without her consent.
(i) Serious Breach of Trust by an Uncle. You were 64 years old, at the time of the offences. The female complainant was 14 years old. You were her uncle by marriage. In a village setting, the elder members were supposed to look after the younger ones in the village. The complainant was a friend of your twin sons. She often comes with her younger brother to play with your twins. Her parents trusted you when she was in your house. Yet you did the unthinkable by sexually assaulting her and raping her in your house on six occasions (counts no. 1, 2, 3, 4, 5, and 7). Your behavior cannot be tolerated in our society. You must realized that you will have to serve a lengthy prison sentence as a warning to others not to commit these offence against children.
(ii) The offences were premeditated and pre-planned. Looking at the facts of your case, it was obvious that you planned this sexual attacks on the complainant. You asked her parents to send her and her younger brother to your house to play and watch movies with your young twin sons. However, this was nothing but a ploy to get her to you so that you could sexually attack her. Your plans were really cunning and devious. You will have to be punished for that.
(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.
(i) At the age of 64 years, this was your first sexual offence;
(ii) You had been remanded in custody since 28 October 2020,that is, approximately 1 year 3 months 13 days ago.
(i) Count No. 1 - Sexual Assault - 4 years imprisonment
(ii) Count No. 2 - Indecent Assault - 2 years imprisonment
(iii) Count No. 3 - Indecent Assault - 2 years imprisonment
(iv) Count No. 4 - Rape - 13 years imprisonment
(v) Count No. 5 - Rape - 13 years imprisonment
(vi) Count No. 6 - Rape - 13 years imprisonment
(vii) Count No. 7 - Rape - 13 years imprisonment
Salesi Temo
JUDGE
Solicitor for the State : Office of the Director of Public Prosecution, Labasa
Solicitor for the Accused : Legal Aid Commission, Labasa
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URL: http://www.paclii.org/fj/cases/FJHC/2022/46.html