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State v Cama [2010] FJHC 174; HAC039.2010 (25 May 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 039 OF 2010

STATE

V

JONE CAMA

Ms. M. Fong for the State
Accused in Person

Date of Hearing: 13 and 25 May 2010
Date of Sentence: 25 May 2010

SENTENCE

[1] On the 12h April 2010 at Tavua Magistrates’ Court, the accused pleaded guilty to one charge of attempted rape. He agreed the facts and was convicted. He was represented by the Legal Aid Commission, which Commission filed a submission of mitigation in writing. The Magistrates Court transferred the matter to this Court "for trial" pursuant to S. 190 of the Criminal Procedure Decree 2009. Section 190 deals with sentence and there being no necessity for "trial", this Court assumes that the transfer for trial is a misnomer for sentence.

[2] The facts of the case are that in the early hours of the morning of 27 January 2010 at Nadala, Nadarivatu, the accused attempted to rape the victim a 2 year old girl sleeping in the same house. The little girl was staying with her 25 year old sister and was to sleep in the sitting room. The accused was staying in the same house, sleeping in another room. At about 4.00am the guardian woke up and noticed that the victim was not in the sitting room. She searched and heard noises coming from the accused’s room. She entered the room and found the victim lying beside the accused. She removed the victim who was crying. When changing the child’s diaper she noticed seminal fluid on the diaper and on the back of the girl. The grandmother who was also in the house confronted the accused who then fled from the village. The child was taken to Tavua Hospital and examined. A medical report discloses that there was bruising of the left labia consistent with recent blunt trauma. The pediatrician added in the report that the psychological impact of the incident will affect the victim and her family.

[3] The accused was arrested on 28th January 2010 and interviewed under caution by the Police. He said that he was doing early morning devotion when the victim entered his room. After devotion he had "lusty feeling" and lay down next to the victim. He started rubbing the victim’s vagina after lifting her diaper. He then rubbed his erect penis against her vagina until he ejaculated.

[4] The accused is aged 51, is married with one daughter and is normally resident in Taveuni. He is unemployed. In mitigation his Counsel submits that he was overcome by "an inordinate and intense longing to lay with a woman". He nevertheless acknowledges that his actions were wrong, he pleaded guilty, he has no previous convictions and Counsel prays that all of these factors should be taken into consideration.

[5] It is quite unnecessary to list what are the gravest aggravating factors imaginable. As the good Doctor says the lifelong impact that these events would have on this child and particularly when she herself reaches sexual maturity is unthinkable. To abuse the trust of his hosts by defiling an innocent baby in the house is outrageous.

The Law

[6] The maximum sentence for attempted rape is now life imprisonment. The maximum sentence for attempted rape on the 27th January 2010 was ten years. Ten years is obviously not enough for such a heinous crime however but for it being committed 4 days before the law changed, I am constrained to apply the former penalty.

[7] I take as my starting point the maximum term of ten years, for the very reason that I cannot imagine a more serious case of attempted rape than this. Credit must be given to the accused for his clear record, his remorse and most particularly for his early plea. For those factors I deduct three years.

It is very tempting to add further years to reflect the serious aggravating features in this case. However those features are already subsumed in the starting point of ten years and it would be unfair to the accused to punish him twice fold for his deeds, no matter how odious they be.

[8] The total terms of imprisonment will be therefore seven years.

[9] To reflect the Court’s and the community’s abhorrence for such a crime, I fix a period of six years in which the accused is not eligible to be considered for parole.

[10] Thirty (30) days to appeal.

Paul K. Madigan
Judge

At Lautoka
25 May 2010