State v Baleiono - Sentence [2022] FJHC 490; HAC12.2021 (18 August 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 12 of 2021

STATE

vs.

ISIMELI CAGICA BALEIONO

Counsel: Ms. K. Semisi for the State
Mr. T. Varinava for the Accused

Date of Hearing: 09^th August to 10^th August 2022
Date of Closing Submission: 11^th August 2022
Date of Judgment: 12^th August 2022
Date of Sentence/Mitigation Submission: 16^th August, 2022
Date of Sentence: 18^th August, 2022

SENTENCE

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

1. Isimeli Cagica Baleiono, you were found guilty and convicted on the 12^th of August 2022 the Representative count No. 1 of Rape contrary to Section 207 (1) and (2)(b) and (3), Representative count No 2 of Rape contrary to Section 207 (1) and (2)(b) and Sexual Assault Contrary to Section 210 (1) (a) of the Crimes Act, 2009 by this Court after a full hearing of the trial of which I presided. You appear today to be sentenced for the said offences.

Circumstances of the Offending

2. The complainant is M.B, born on 15th August 2008, was between11 and 12 years in 2020. The accused was in a de facto relationship with M.B’s mother Kalolaini Raga so the Accused was her stepfather. M.B’s mother had previously been married to another had 2 kids M.B and her younger brother. M.B’s mother has 2 children from the Accused, the younger two siblings. Due to the Covid-19 situation M.B’s mother had lost her job then village on the 8th of July 2022 shifted to Udu, Totoya, Lau which is an island village where the accused had a plot of land and a house. Within days of shifting on the 14^th of July, 2020 when M.B had gone to sleep with her brother and a sister you woke up removed her pants and panty and started to touch her vagina. Though she did not liked it and told you not to do so you continued and even held her mouth at one stage and then putt your tongue into her vagina and licked and inserted you penis into her vagina and had sexual intercourse despite it been extremely painful to her. You also sucked her breast and kissed her mouth. Then you told her that you will kill her and her mum if this was told to anybody.
   
3. The pain in her vagina had continued during the following days but 2 nights thereafter you wanted to have sex with her and when she refused told her that you will cut her neck and her mother’s neck and will crush it. Thereafter, you sadistically and shamelessly did the same thing that you did the previous day. These sexual escapes continued during the period 14^th of July to the 06^th of November.
   
4. Then apart from abusing her in the house the you inserted the penis into her vagina and had sexual intercourse when the entire family was at the plantation on Saturdays and her mother was a short distance away. The on the 6^th November, 2020 you had the audacity to the rape M.B whilst she was sleeping near her mother. Your abusing was such she used to helplessly cry on her own at night.
   
5. You put her in to such a state of fear that MB did not tell the mother because she was afraid you may kill or harm her or the mother.
   
6. Then on 25^th November, you went into the kitchen and told M.B that she should not wear a panty at night as you wanted to have sex with her and then lifted her skirt and touched her buttocks. This was seen by her mother ran away with M.B and hid the house of Ms. Ana. A neighbour. You perused them and threatened that they should go back home as if not the lives of other two children at home will be in danger. That night you made an undiluted and an extremely horrible threat using a chopper to M.B’ s mother Kalolaini, that you would kill Kalolaini or the children if she ever tries to escape again.
   
7. M.B and Kalolaini were virtually helpless in this alien land of Udu in your territory isolated and away from the authorities. They were financially weak and dependent on you which you took advantage of. It is the fact that Kalolaini being an ex-police officer her police background that enable her to successfully escape in this manner with all the children and was able to bring this to the notice of the police. If not for her tact and intelligence this offending would never have been exposed and with your final threat you were certainly planning to continue with your perverted and evil sexual abuse of your step daughter for a long time to come in the secrecy and the geographical isolation of Udu. These are the sordid acts I was reluctantly compelled to reproduce to lay the bare facts of this offending which necessary.
   

Sentencing regime

8. The maximum penalty prescribed for Rape contrary to Section 207 (1) and (2) (b)/(a) and (3) 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 this 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.”

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)”.

9. 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. The act of squeezing the breasts will come within category 3.
   

Objective Seriousness, Culpability and Harm of the Offending

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

“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.”

11. 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.
12. You have been found guilty of several of sexual crimes of utmost gravity. The offences involve the exploitation and abuse of a vulnerable child over a period of time. There are many features that aggravate the culpability and harm factors. You subjected her to repeated abuse in a cruel and harsh 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 force and your familial position and power. You as the step father was in control and in a position to enforce your power over her as you were in a long standing de facto relationship to her mother and thus guardian of M.B especially as the mother too was dependent on you. The complainant felt both fear and misguided loyalty to you. She was reluctant to tell others even her mother, as to what you were doing to her. No doubt this encouraged you to carry on your depraved conduct for almost 5 months taking advantage of the opportunities you had whilst living in the same house in the isolated island village of Udu.
13. The victim impact report states that this crime has adversely affected the Complainant emotionally and psychologically. According to the Victim Impact Report, M.B had sad, angry, embarrassed, fearful and horrified. She had felt sad because she did not like what was done to her by Isimeli. What you have done to her has made her feel different. Though she was a child she did not have a care free life. She was sad because though she said ‘No’ you raped her and that she also felt embarrassed, a sense of aloneness and valulessness because some of her relatives blamed her for what had happened when she knew that she was not to be blamed for being raped. She had been reluctant to visit or mix with relatives. She says that though she saw him as a father he used his power to sexually abuse her so she hated Isimeli. Due to this incident she has stopped playing with friends and siblings after school remained in the house and avoided talking to them. At school, she has become moody though she was happy and chatty earlier. She had suffered flashbacks and had sleepless nights and due to the fear of Isimeli. Counselling with the Crisis Centre has helped her to talk about being abused and now she has developed a close relationship with her mom but still finds it difficult to trust people. It is clear from the victim impact statement that your offending has had a very significant and long-lasting psychological impact on the minor a vulnerable complainant which must be considered in sentencing.
    
14. The aggravating factors are as follows:
    • (i) Serious Breach of de facto Parental Trust. You, acknowledged that your role was one of de facto parent 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 stepdaughter since she was 6 years old for almost for 5 years. Such a position of power over the other who is a minor render such sexual activity morally wrong and punishable within the realms of the criminal law. M.B was vulnerable to your seniority in age and the de facto familial standing due to your de facto affinity with her Mother. You were in a position of trust. The culture and the traditions of the Fijian society expects you to protect children in the community and the elders enjoy the respect and veneration of the young. You taking advantage of this rich culture sexually exploited M.B 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 in the safety of her own home so to say, by a person from whom she was entitled to expect protection. The accused has violated the trust which the complainant and her mother placed in him and abused that position of trust

(ii). There was a considerable disparity in age between you and the complainant. The complainant was between 11 and 12 years old at the time you committed these offences on her and you were between 32 and 33 years and so you were 21 year her senior in age.

(iii) You sexually abused her and raped her multiple times during July and November 2020.

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

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

(vi) You have exposed the innocent mind of a child to sexual activity at such a tender age you had no regards 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 untold misery to her mother.

15. The mitigating factors are as follows:

(i). Isimeli, you are now 35 years of age and with two children 10 and 6 years of age. You have been a farmer by profession earning $ 50.00 per week. Unfortunately, these are all personal circumstances and cannot be considered as mitigating circumstances.

(ii). As per the Antecedent Report filed, it is noted that there are five previous convictions of which one in 2011 which will be disregarded. Therefore, this Court is unable to consider you as a person of previous good character.

I regret to note that there is little that this court can consider in mitigation in your favour.

Sentence

16. Your offences are so serious that only a custodial sentence can be justified. The least possible sentences I can impose, having regard to the aggravating and mitigating factors of the case, will be as follows:
    1. We will start with the serious offences of rape. For the Representative counts 1 and 2, I pick and start with a sentence of 15 years imprisonment. I add a 4 years for the aggravating factors, making a total of each sentence 19 years imprisonment. As for the mitigating factors there is little as I said, but I will I deduct 1 year for looking after the victim for some time, leaving a balance of 18 years imprisonment. Thus, on counts 1 and 2 (rape), I sentence you to 18 years imprisonment for each of the said counts separately.
    2. Now, as for the count No. 3 of Sexual assault, of touching the buttock which will be category 3 the lower end of the tariff. As such I pick the lower end start with a sentence of 2 years imprisonment. I add a modest 2 years for the aggravating factors, making a total of 4 years imprisonment for the count of sexual assault. For the mitigating factor as aforesaid will deduct 1 year, leaving a balance of 3 years imprisonment.
       
17. I am satisfied that you are manipulative; you are somewhat of a sexual predator of a prepubescent child to some extent; you are dangerous. The public and in particular young females and prepubescent children need protection from you. On the one hand this is a case which would justify a long ‘denunciatory’ sentence. I bear in mind that, such a sentence is one of last resort. However, in the circumstances of this offending in my judgment, justice and protection of the public can and should be achieved by such a very long sentence.
    
18. Thus, to in my thinking as the rape counts are representative counts the sentences on your offences must be consecutive. However, I have to bear in mind totality. To that end and arrive at a just compromise between the competing factors and interest of the society and direct and order that, the sentences of Rape counts 1and 2 to run concurrently. However, as the offending of sexual assault is based on a separate and distinct act the sentence of the Count No.3 will run consecutively to the said concurrent sentences of Rape counts 1and 2. The total sentence then is 21 year’s imprisonment.
    
19. In view of the reasons discussed above, I sentence you to a total period of twenty one (21) year’s imprisonment for the counts of Rape and sexual assault for which you stand convicted.
    

Non-Parole period

20. Having considered the seriousness of this crime, the purpose of this sentence, and opportunities for rehabilitation, I find that a sixteen (16) year non-parole period would serve the purpose of this sentence. Hence, you are not eligible for parole for sixteen (16) years pursuant to Section 18 (1) of the Sentencing and Penalties Act.
    
21. Having considered section 4 (1) of the Sentencing and Penalties Act and the serious nature of the offences committed on the victim who was the your step-daughter aged between 11 and 12 years and the cruel manner considered together with the coercive death threats made to the victims and her mother whilst virtually holding them as hostages in their home compels me to state that the purpose of this sentence is to punish you in a manner that is just in all the circumstances, protect the community, deter like-minded offenders and to clearly manifest that the court and the community denounce what you did to the complainant for almost 5 months and in a manner which is just in all the circumstances of the case.

Head Sentence

22. Accordingly, I sentence you to a period of twenty-one (21) years imprisonment for the counts of Rape and sexual assault as charged and convicted. However, you are not entitled to parole for sixteen (16) years pursuant to Section 18 (1) of the Sentencing and Penalties Act.
    

Actual Period of the Sentence

23. You were in arrested remanded for this case on 10^th December 2020 and had been in remand up to date. You have been in custody for a period of nearly 20 months. In terms of the provisions of Section 24 of the Sentencing and Penalties Act I hold that the said period of 20 months be considered as imprisonment that you have already served.
    
24. Accordingly, the actual sentence is a period of is nineteen (19) years and four (04) months imprisonment with a non-parole period of fourteen (14) years and four (04) months
    
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 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.
    
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.
    

...................................................
Gihan Kulatunga
Judge
At Suva
18^th August, 2022.

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