State v Vounia [2022] FJHC 85; HAC156.2020 (3 March 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
[CRIMINAL JURISDICTION]

CRIMINAL CASE NO: HAC 156 of 2020

STATE

V

JOJI MANASA VOUNIA

Counsel : Ms. Unaisi Tamanikayaroi for the State
Mr. Isireli Romanu for the Accused

Dates of Trial : 1, 3 and 8 November 2021

Closing Submissions : 18 November 2021

Judgment : 17 December 2021

Sentence Hearing : 21 February 2022

Sentence : 3 March 2022

The name of the complainant is suppressed. Accordingly, the complainant will be referred to as “MUN”.

SENTENCE

[1] Joji Manasa Vounia, you were charged with the following offences:

Count 1

Statement of Offence

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

Particulars of Offence

JOJI MANASA VOUNIA, between the 7^th day of May 2020, at Suva, in the Central Division, penetrated the anus of MUN, a child under the age of 13 years, with his finger.

Count 2

Statement of Offence

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

Particulars of Offence

JOJI MANASA VOUNIA, between the 7^th day of May 2020, at Suva, in the Central Division, penetrated the vulva of MUN, a child under the age of 13 years, with his finger.

Count 3

Statement of Offence

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

Particulars of Offence

JOJI MANASA VOUNIA, between the 7^th day of May 2020, at Suva, in the Central Division, on an occasion other than mentioned in Count 1, penetrated the anus of MUN, a child under the age of 13 years, with his finger.

Count 4

Statement of Offence

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

Particulars of Offence

JOJI MANASA VOUNIA, between the 7^th day of May 2020, at Suva, in the Central Division, on an occasion other than mentioned in Count 2, penetrated the vulva of MUN, a child under the age of 13 years, with his finger.

Count 5

Statement of Offence

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

Particulars of Offence

JOJI MANASA VOUNIA, between the 7^th day of May 2020, at Suva, in the Central Division, on an occasion other than mentioned in Count 1 & Count 3, penetrated the anus of MUN, a child under the age of 13 years, with his finger.

Count 6

Statement of Offence

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

Particulars of Offence

JOJI MANASA VOUNIA, between the 7^th day of May 2020, at Suva, in the Central Division, on an occasion other than mentioned in Count 2 & Count 4, penetrated the vulva of MUN, a child under the age of 13 years, with his finger.

[2] You pleaded not guilty to the charges and the matter proceeded to trial. The ensuing trial was held over 3 days. The complainant (MUN) and her aunt, Latileta Liauselala. testified on behalf of the prosecution. You testified on your own behalf.

[3] At the end of the prosecution case this Court decided that there was no relevant or admissible evidence to establish that you had committed the offences you were charged with in Counts 1, 3 and 5. Accordingly, you were found not guilty and acquitted of the said charges.

[4] At the conclusion of all the evidence and having reviewed the said evidence, this Court found you guilty and convicted you of Counts 2, 4 and 6.

[5] It was proved during the trial that, on 7 May 2020, at Suva, you penetrated the vulva of the complainant with your finger, on three separate occasions, and at the time the complainant was a child under the age of 13 years.

[6] As per her birth certificate tendered to Court as Prosecution Exhibit PE1, the complainant’s date of birth is 24 February 2010. Therefore, at the time you committed these offences on her she was 10 years of age. At the time she testified in Court she had turned 11.

[7] The complainant clearly testified to all the aforesaid incidents. I have referred to the complainant’s evidence at length in my judgment.

[8] In terms of the Victim Impact Statement filed in Court, it is recorded that the complainant has been emotionally and psychologically traumatized by your actions. It is clear that the impact of your actions are continuing, as the complainant remains traumatized by the incidents.

[9] Section 4(1) of the Sentencing and Penalties Act No. 42 of 2009 (“Sentencing and Penalties Act”) stipulates the relevant factors that a Court should take into account during the sentencing process. The factors are as follows:

4. — (1) The only purposes for which sentencing may be imposed by a court are —

(a) to punish offenders to an extent and in a manner which is just in all the circumstances;

(b) to protect the community from offenders;

(c) to deter offenders or other persons from committing offences of the same or similar nature;

(d) to establish conditions so that rehabilitation of offenders may be promoted or facilitated;

(e) to signify that the court and the community denounce the commission of such offences; or

(f) any combination of these purposes.

[10] Joji Manasa, I have duly considered the above factors in determining the sentence to be imposed on you, which is primarily to deter offenders or other persons from committing such offences and also to signify that the Court and the community denounce the commission of such offences.

[11] The offence of Rape in terms of Section 207(1) of the Crimes Act No. 44 of 2009 (“Crimes Act”) carries a maximum penalty of imprisonment for life.

[12] The severity of the offence of Rape was highlighted by the Fiji Court of Appeal in the case of Mohammed Kasim v. The State [1994] FJCA 25; AAU 21 of 93 (27 May 1994); where it was stated:

“....It must be recognized by the Courts that the crime of rape has become altogether too frequent and that the sentences imposed by the Courts for that crime must more nearly reflect the understandable public outrage.”

[13] In the case of State v. Marawa [2004] FJHC 338; HAC 16T of 2003S (23 April 2004); His Lordship Justice Anthony Gates stated:

“Parliament has prescribed the sentence of life imprisonment for rape. Rape is the most serious sexual offence. The Courts have reflected increasing public intolerance for this crime by hardening their hearts to offenders and meting out harsher sentences”.

“A long custodial sentence is inevitable. This is to mark the gravity of the offence as felt, and correctly so, by the community. Imprisonment emphasizes the public’s disapproval and serves as a warning to others who may hitherto regard such acts lightly. One must not ignore the validity of the imposition of condign punishment for serious crime. Lastly the sentence is set in order to protect women from such crimes: Roberts and Roberts (1982) 4 Cr. App R(S) 8; The State v Lasaro Turagabeci and Others (unreported) Suva High Court Crim. Case No. HAC0008.1996S.”

[14] In The State v Lasaro Turagabeci and Others (supra) Pain J had said:

“The Courts have made it clear that rapists will be dealt with severely. Rape is generally regarded as one of the gravest sexual offences. It violates and degrades a fellow human being. The physical and emotional consequences to the victim are likely to be severe. The Courts must protect women from such degradation and trauma. The increasing prevalence of such offending in the community calls for deterrent sentences.”

[15] His Lordship Justice Daniel Goundar, in the case of State v. AV [2009] FJHC 24; HAC 192 of 2008 (2 February 2009); observed:

“....Rape is the most serious form of sexual assault. In this case a child was raped. Society cannot condone any form of sexual assaults on children. Children are our future. The Courts have a positive obligation under the Constitution to protect the vulnerable from any form of violence or sexual abuse. Sexual offenders must be deterred from committing this kind of offences”.

[16] 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.”

[17] In the case of Felix Ram v. The State [2015] FJSC 26; CAV 12 of 2015 (23 October 2015); His Lordship Chief Justice Anthony Gates laid down the following factors that a Court should take into account when sentencing an offender who has been convicted of Rape:

“(a) whether the crime had been planned, or whether it was incidental or opportunistic;

(b) whether there had been a breach of trust;

(c) whether committed alone;

(d) whether alcohol or drugs had been used to condition the victim;

(e) whether the victim was disabled, mentally or physically, or was specially vulnerable as a child;

(f) whether the impact on the victim had been severe, traumatic, or continuing;

(g) whether actual violence had been inflicted;

(h) whether injuries or pain had been caused and if so how serious, and were they potentially capable of giving rise to STD infections;

(i) whether the method of penetration was dangerous or especially abhorrent;

(j) whether there had been a forced entry to a residence where the victim was present;

(k) whether the incident was sustained over a long period such as several hours;

(l) whether the incident had been especially degrading or humiliating;

(m) If a plea of guilty was tendered, how early had it been given. No discount for plea after victim had to go into the witness box and be cross-examined. Little discount, if at start of trial;

(n) Time spent in custody on remand;

(o) Extent of remorse and an evaluation of its genuineness;

(p) If other counts or if serving another sentence, totality of appropriate sentence.”

[18] His Lordship Justice Goundar in State v Apisai Takalaibau – Sentence [2018] FJHC 505; HAC 154 of 2018 (15 June 2018); making reference to statistics of Aggravated Burglary cases filed in the High Court in 2017 and 2018, stated that “A factor that influences sentencing is the prevalence of the offence in the community........The more prevalent is an offence, the greater the need is for deterrence and protection of the community.”

[19] This has been affirmed by the Supreme Court in Alfaaz v. State [2018] FJSC 17; CAV0009.2018 (30 August 2018); where it was recognized that the prevalence of cases of child rape calls for harsher punishments to be imposed by Courts. Their Lordships held:
“According to the statistics released by the Director of Public Prosecutions Office it appears that a number of rape victims as well as victims under the age of 18 years and victims in domestic relationships or relatives were also victims of other serious sexual offences. The rape of children is a very serious offence and it is very frequent and prevalent in Fiji. The courts must impose harsh penalties dictated by the legislation. The courts should not leniently look at this kind of serious cases of rape of children of tender years when punishing the offenders.”

[20] In the case of Anand Abhay Raj v. The State [2014] FJSC 12; CAV 0003 of 2014 (20 August 2014); Chief Justice Anthony Gates (with Justice Sathyaa Hettige and Madam Justice Chandra Ekanayake agreeing) endorsed the view that Rapes of juveniles (under the age of 18 years) must attract a sentence of at least 10 years and the acceptable range of sentences or sentencing tariff is between 10 and 16 years imprisonment.

[21] However, in the case of Aitcheson v State [2018] FJSC 29; CAV0012 of 2018 (2 November 2018); His Lordship Chief Justice Gates stated that the sentencing tariff for the Rape of a juvenile should now be increased to between 11 and 20 years imprisonment. His Lordship held:

“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.”

[22] In determining the starting point within the said tariff, the Court of Appeal, in Laisiasa Koroivuki v. State [2013] FJCA 15; AAU 0018 of 2010 (5 March 2013); has formulated the following guiding principles:

“In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this time. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff. If the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range.”

[23] Joji Manasa, in the light of the above guiding principles, and taking into consideration the objective seriousness of the offences, I commence your sentences at 11 years imprisonment for each of the counts of Rape you have been convicted.

[24] The aggravating factors are as follows:

(i) You are related to the complainant from her father’s side. When asked to explain the nature of the relationship the complainant said “We are brothers and sisters”. Since you are also referred to as Junior, the complainant usually calls you as ‘Ju’. Thus the complainant knew you and trusted you. Being so, you should have protected the complainant. Instead, you have breached the trust expected from you and the breach was gross.

(ii) There was a considerable disparity in age between you and the complainant. The complainant was 10 years of age, at the time you committed these offences on her. At the time of the offending you were 27 years of age. Therefore, you were 17 years older than the complainant.

(iii) Considering the fact that the complainant was only 10 years of age, you took advantage of the complainant’s vulnerability, helplessness and naivety.

(iv) You have exposed the innocent mind of a child to sexual activity at such a tender age, and thereby robbed the complainant of her innocence.

(v) I find that there was some degree of planning and premeditation on your part in committing these offences, since you lured the complainant into the house where the offending took place.

(vi) The complainant has been emotionally and psychologically traumatized by your actions and the harm is said to be continuing.

(vii) You are now convicted of multiple offending.

[25] Considering the aforementioned aggravating factors, I increase your sentence by a further 4 years. Now your sentences are 15 years imprisonment for each of the counts of Rape.

[26] Joji Manasa, you are now 29 years of age (Your date of birth being 29 November 1992). You are in a de-facto relationship with Sera Wati, since 2014. You have a child from a previous relationship, who is said to be disabled and living with your parents. In September 2018, you were awarded a Bachelor of Science Degree from the University of the South Pacific. Unfortunately, these are all personal circumstances and cannot be considered as mitigating circumstances.

[27] As per the Antecedent Report filed, it is noted that there are nil previous convictions recorded against you. The State Counsel too has confirmed that you are a first offender. Therefore, Court considers you as a person of previous good character.

[28] Furthermore, during the sentence hearing your Counsel called 2 witnesses to testify about your previous good character. The first witness was Isireli Mataitoga – a Pastor at Holy Spiritual Congregation of the Poor at Naboro. He submitted that he knows you from the time of your birth and that you are a member of his church and was highly involved in church activities from your young days.

[29] The next witness was your de-facto partner Sera Wati. She testified that you are a very helpful and supportive person to your family and that you have been assisting the youth in your community. She said you are a good person, full of love and one could hardly hear anything negative about you.

[30] Based on the above testimony, the Counsel for the Defence submitted that the charges that you have now been convicted of is totally out of character with your normal disposition.

[31] Joji Manasa, I accept that you are a person of previous good character. Accordingly, considering the aforesaid mitigating factor I reduce 2 years from your sentences. Now your sentences are 13 years imprisonment for each of the counts of Rape.

[32] In the circumstances, your sentences are as follows:

Count 2 – Rape contrary to Section 207 (1) and 2(b) and (3) of the Crimes Act – 13 years’ imprisonment.

Count 4- Rape contrary to Section 207 (1) and 2(b) and (3) of the Crimes Act – 13 years’ imprisonment.

Count 6 – Rape contrary to Section 207 (1) and 2(b) and (3) of the Crimes Act – 13 years’ imprisonment.

I order that all sentences of imprisonment to run concurrently. Therefore, your total term of imprisonment will be 13 years.

[33] Accordingly, I sentence you to a term of 13 years imprisonment. Pursuant to the provisions of Section 18 of the Sentencing and Penalties Act, I fix your non-parole period as 10 years’ imprisonment.

[34] Section 24 of the Sentencing and Penalties Act reads thus:

“If an offender is sentenced to a term of imprisonment, any period of time during which the offender was held in custody prior to the trial of the matter or matters shall, unless a court otherwise orders, be regarded by the court as a period of imprisonment already served by the offender.”

[35] You had been arrested for this case on 12 May 2020 and remanded into custody until 1 July 2020, the day on which you were granted bail by this Court. That is a period of 1 and a half months. Thereafter, you were again remanded into custody on 17 December 2021, the day on which you were found guilty and convicted for this case. That is a period of nearly 2 and a half months to date. Accordingly, you have been in custody for a period of about 4 months. The period you were in custody shall be regarded as period of imprisonment already served by you. I hold that a period of 4 months should be considered as served in terms of the provisions of Section 24 of the Sentencing and Penalties Act.

[36] In the result, your final sentence is as follows:

Head Sentence - 13 years’ imprisonment.

Non-parole period - 10 years’ imprisonment.

Considering the time you have spent in remand, the time remaining to be served is as follows:

Head Sentence - 12 years’ and 8 months imprisonment.

Non-parole period - 9 years’ and 8 months imprisonment.

[37] You have 30 days to appeal to the Court of Appeal if you so wish.

Riyaz Hamza
JUDGE

HIGH COURT OF FIJI

AT SUVA
Dated this 3^rd Day of March 2022

Solicitors for the State : Office of the Director of Public Prosecutions, Suva.

Solicitors for the Accused : MIQ Lawyers, Barristers and Solicitors, Suva.