State v Meraseu - Sentence [2024] FJHC 331; HAC007.2023 (19 April 2024)

THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No. HAC 007 of 2023

THE STATE

V

SEFORANA TIPO MERASEU

Counsel: Ms U Ratukalou for the State
Mr I Emasi for the Accused

Hearing: 18 & 19 March 2024
Closing addresses: 22 March 2024
Judgment: 26 March 2024
Mitigation: 11 April 2024
Sentence: 19 April 2024

SENTENCE
(the name of the victim is suppressed and she is referred to as ‘DS’)

[1] Mr. Meraseu appears today for sentence. He has been found guilty, following a defended trial, of one count of sexual assault and one count of rape against the victim, DS.

Background

[2] DS was 14 years at the time of Mr Meraseu’s offending. Mr. Meraseu was 52 years old.

[3] Mr. Meraseu was in a relationship with DS’ mother for several months in 2022. DS’ mother was living with Mr. Meraseu at his home in Nadera, Suva, along with DS’ younger brother. DS was living in her village with her maternal grandfather. In the period leading up to the offending, DS had come to know Mr. Meraseu from his weekly weekend visits to the village. At the request of her mother DS referred to Mr. Meraseu as ‘Ta’, meaning dad.

[4] On 15 December 2022, DS travelled from her village to Mr. Meraseu’s home so that her mother could purchase stationery for her schooling in the following year. After the purchase of the stationery, DS remained at the Nadera house over the Christmas break.

[5] Mr. Meraseu's house was full. Three families lived in the house, each family occupying a bedroom. Mr. Meraseu, DS’ mother, DS and her younger brother occupied one room.

[6] In the late evening of 27 December 2022, DS and her younger brother were sleeping on the bed in their bedroom whilst DS’ mother and Mr. Meraseu slept on the floor. DS was awoken from her sleep when she felt a hand on her body. She kept her eyes closed, no doubt frightened by this assault on her. She felt the hand rub her vagina. She then felt a finger poke inside her vagina. The poke was painful causing DS to open her eyes. When she did so, she saw Mr. Meraseu sitting facing her. Mr Meraseu apologized to DS and then left the bedroom to go to the washroom. DS immediately woke her mother and informed her what had happened. When Mr. Meraseu returned from the washroom DS’ mother confronted and punched Mr. Meraseu.

[7] A report was made to the police on 28 December 2022. Mr. Meraseu was immediately arrested. He has since spent the large part of the period since that time in remand.

[8] Following a defended hearing in March 2024, I found Mr. Meraseu guilty of the two counts of sexual assault and digital rape.

Sentencing Regime

[9] The maximum penalty prescribed for rape contrary to s 207(1) and (2)(b) and (3) of the Crimes Act is life imprisonment. The tariff is between 11 years and 20 years imprisonment. As Gates CJ stated in Aitcheson v The State [2018] FJHC 29 (2 November 2018);

The tariff previously set in Raj v The State [ 2014] FJSC 12 CAV 0003 of 2014 [20 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.

[10] With respect to the offence of sexual assault, Madigan J stated in State v Laca [2012] FJHC 1414 (14 November 2012):

[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).”

[11] Both counsel agree, as do I, that the facts of this case fall within category 2 in respect to Mr Meraseu’s offending for count one.

[12] Pursuant to s 17 of the Sentencing and Penalties Act 2009, where ‘an offender is convicted of more than one offense, 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’. The two counts for which Mr. Meraseu has been found guilty arise from the same incident and, therefore, I am satisfied that it is appropriate to impose an aggregate sentence of imprisonment on Mr Meraseu in respect to the two counts.

[13] Before doing so, it is appropriate to emphasize the following passage from Madigan J in State v Tauvoli [2011] FJHC 216 (18 April 2011) at [5]:

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.

Head Sentence

[14] In assessing the objective seriousness of Mr Meraseu’s offending in this matter, I have considered the maximum sentence prescribed for the two offences, the degree of culpability, the manner in which he committed the offences and the harm caused to DS. I give due cognizance to the sentencing guidelines stipulated in s 4 of the Sentencing and Penalties Act. In my view, the appropriate starting point for Mr Meraseu’s offending is 11 years.

[15] The aggravating factors that are present here are:

1. Breach of trust: Mr. Meraseu was effectively DS’s stepfather albeit for a short time in 2022. DS referred to him as ‘Ta’. Mr. Meraseu acknowledged at the trial that there was a lot of trust built during the time he spent with DS at the village. A stepfather stands in the shoes of a child’s biological father occupying a significantly important role, and responsibility, in the development of a child.
   
2. Age disparity: There is a substantial age disparity between the offender and the victim. Mr. Meraseu was 52 years at the time whilst DS was only 14 years.
   
3. Vulnerable victim: DS was in a particularly vulnerable position not only given her age, but also because she was away from her normal safe environment in her grandfather's house in the village.
   
4. Long term consequences: The impact of the offending will be long standing as well as significant for DS. In her Victim Impact Statement DS states that she has been emotionally affected and her education has suffered. She feels ashamed and in fear of Mr. Meraseu and neither wishes to see him nor talk to him. She has moved to Nadi. I have no doubt that the offending will have other long term psychological consequences on DS, not least on her ability to trust male figures in her life.
   

[16] In considering a tariff for these aggravating factors I also take into account my earlier finding that Mr Meraseu’s offending was not planned but impulsive. Further, it occurred on one occasion and did not involve a series of offending. I add 2½ years for these aggravating factors.

[17] The mitigating factors present is that Mr. Meraseu is a first offender. He was, up until this offending, of previous good character. Mr Meraseu addressed the Court asking for forgiveness for his offending. I deduct 2 years for mitigating factors, leaving a balance of 11½ years.

Non-Parole Period

[18] Pursuant to s 18 of the Sentencing and Penalties Act, where an offender has received a sentence of two years or more this Court must impose a non-parole period, unless the Court considers that the nature of the offenses or the past history of Mr Meraseu make the fixing of a non-parole period inappropriate.^[1] While Mr. Meraseu was of previous good character, the prevalence of sexual offending on children in Fiji, and the need for deterrence, in my view require that a non-parole period is imposed in the present case.

[19] That said, the authorities make it clear that the courts must strike a balance between deterrence on the one hand and not discouraging rehabilitation on the other. As was stated by Calanchini P in Tora v The State:

...the non-parole period should not be so close to the head sentence as to delay or discourage the possibility of rehabilitation. Nor should the gap between the non-parole term and the head sentence be such as to be ineffective as a deterrent.

[20] The following remarks by Chandra JA in the Court of Appeal decision of Naitini & Others v The State Criminal Appeal Number AA 102 of 2010 [3 December 2015] are also relevant:

[18] This brings about the issue of what should be the minimum limit of the non-parole period in relation to the head sentence when imposing a sentence. A useful indication is found in Maturino Raogo (supra) where it was stated that the minimum term of imprisonment should not be less than two thirds of the primary sentence. This should however, not be considered as a general rule as the circumstances relating to the particular case and the nature and seriousness of the crime committed and the manner in which it has been committed may require the imposition of a longer non-parole period than two thirds of the head sentence.

[19] It will also be necessary to consider the personal circumstances of the offender when deciding on the minimum non-parole period, as to whether he/she was a first offender or a person with a history of having committed crimes of a similar or serious nature which may have already been considered when imposing the head sentence. It would be natural for the sentencing court to be influenced by the aggravating and mitigating circumstances, which may already have been considered in imposing the sentence.

[21] In all the circumstances, in my view a reasonable non-parole period for Mr. Meraseu is 8 years.

Actual Sentence

[22] Pursuant to s 24 of the Sentencing and Penalties Act, the period that an offender spends in remand awaiting trial shall be considered as time already served, unless the court otherwise orders.

[23] The time that Mr. Meraseu has spent on remand up to the time of this sentence is 1 year 2 months and 18 days. Pursuant to s 24, I reduce Mr Meraseu’s sentence by the time already spent on remand. The result is that the actual sentence for Mr Meraseu is 10 years 3 months and 12 days with a non-parole period of 6 years 8 months and 12 days.

Orders

[24] Mr. Meraseu, you have been found guilty of the serious offences of rape and sexual assault. You breached the trust of what was effectively your stepdaughter, committing offenses against a child who should have had your protection and the safety of your home. You have instead stolen a child's innocence leaving her with the permanent psychological scars of your selfish criminal acts.

[25] I make the following orders:

(i) You are sentenced to a period of 10 years 3 months and 12 days imprisonment with a non-parole period of 6 years 8 months and 12 days.

(ii) The victim, DS, will have permanent name suppression.

(iii) I issue a permanent Domestic Violence Restraining Order against you to protect DS. The order is for a standard non molestation and non-contact conditions pursuant to ss 27 and 29 (1),(2)(a),(b) & (e) of the Domestic Violence Act 2009.

(iv) You have 30 days to appeal to the Fiji Court of Appeal.

............................
D.K.L Tuiqereqere
JUDGE

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

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^[1] Section 18(2).