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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 28 OF 2010
BETWEEN:
STATE
AND:
ASAELI TAMANITOAKULA
Counsel: Mr. Sovau - for the State
Mr. Lee - for the Accused
Date of Hearing: 24.08.10, 25.08.10, 30.08.10
Date of Ruling: 02.09.10
SENTENCE
1. The Director of Public Prosecution has preferred a charge against you as follows.
FIRST COUNT
Statement of Offence (a)
INDECENT ASSAULT: Contrary to Section 154 (1) of the Penal Code Cap 17.
Particulars of Offence (b)
Asaeli Tamanitoakula, on the 16th day of January 2009, at Nasorowaqa, Bua, in the Northern Division, unlawfully and indecently assaulted Lanieta Cagimaiwai.
SECOND COUNT
Statement of Offence (a)
RAPE: Contrary to Section 149 and 150 of the Penal Code Cap 17.
Particulars of Offence (b)
Asaeli Tamanitoakula, on the 17th day of January 2009, at Nasorowaqa, Bua, in the Northern Division, had unlawful carnal knowledge of a girl namely Lanieta Cagimaiwai without her consent.
THIRD COUNT
Statement of Offence (a)
RAPE: Contrary to Section 149 and 150 of the Penal Code Cap 17.
Particulars of Offence (b)
Asaeli Tamanitoakula, on the 20th day of January 2009, at Nasorowaqa, Bua, in the Northern Division, had unlawful carnal knowledge of a girl namely Lanieta Cagimaiwai without her consent.
FOURTH COUNT
Statement of Offence (a)
RAPE: Contrary to Section 149 and 150 of the Penal Code Cap 17.
Particulars of Offence (b)
Asaeli Tamanitoakula, on the 21st day of January 2009, at Nasorowaqa, Bua, in the Northern Division, had unlawful carnal knowledge of a girl namely Lanieta Cagimaiwai without her consent.
FIFTH COUNT
Statement of Offence (a)
RAPE: Contrary to Section 149 and 150 of the Penal Code Cap 17.
Particulars of Offence (b)
Asaeli Tamanitoakula, on the 24th day of January 2009, at Nasorowaqa, Bua, in the Northern Division, had unlawful carnal knowledge of a girl namely Lanieta Cagimaiwai without her consent.
SIXTH COUNT
Statement of Offence (a)
RAPE: Contrary to Section 149 and 150 of the Penal Code Cap 17.
Particulars of Offence (b)
Asaeli Tamanitoakula, on the 25th day of January 2009, at Nasorowaqa, Bua, in the Northern Division, had unlawful carnal knowledge of a girl namely Lanieta Cagimaiwai without her consent.
SEVENTH COUNT
Statement of Offence (a)
RAPE: Contrary to Section 149 and 150 of the Penal Code Cap 17.
Particulars of Offence (b)
Asaeli Tamanitoakula, on the 27th day of January 2009, at Nasorowaqa, Bua, in the Northern Division, had unlawful carnal knowledge of a girl namely Lanieta Cagimaiwai without her consent.
EIGHTH COUNT
Statement of Offence (a)
RAPE: Contrary to Section 149 and 150 of the Penal Code Cap 17.
Particulars of Offence (b)
Asaeli Tamanitoakula, on the 2nd day of February 2009, at Nasorowaqa, Bua, in the Northern Division, had unlawful carnal knowledge of a girl namely Lanieta Cagimaiwai without her consent.
NINETH COUNT
Statement of Offence (a)
RAPE: Contrary to Section 149 and 150 of the Penal Code Cap 17.
Particulars of Offence (b)
Asaeli Tamanitoakula, on the 3rd day of February 2009, at Nasorowaqa, Bua, in the Northern Division, had unlawful carnal knowledge of a girl namely Lanieta Cagimaiwai without her consent.
TENTH COUNT
Statement of Offence (a)
RAPE: Contrary to Section 149 and 150 of the Penal Code Cap 17.
Particulars of Offence (b)
Asaeli Tamanitoakula, on the 1st day of April 2009 to the 30th day of April 2009, at Nasorowaqa, Bua, in the Northern Division, had unlawful carnal knowledge of a girl namely Lanieta Cagimaiwai without her consent.
ELEVENTH COUNT
Statement of Offence (a)
RAPE: Contrary to Section 149 and 150 of the Penal Code Cap 17.
Particulars of Offence (b)
Asaeli Tamanitoakula, on the 1st day of August 2009 to the 31st day of August 2009, at Nasorowaqa, Bua, in the Northern Division, had unlawful carnal knowledge of a girl namely Lanieta Cagimaiwai without her consent.
TWELFTH COUNT
Statement of Offence (a)
RAPE: Contrary to Section 149 and 150 of the Penal Code Cap 17.
Particulars of Offence (b)
Asaeli Tamanitoakula, on the 1st day of September 2009 to the 30th day of September 2009, at Nasorowaqa, Bua, in the Northern Division, had unlawful carnal knowledge of a girl namely Lanieta Cagimaiwai without her consent.
THIRTEENTH COUNT
Statement of Offence (a)
RAPE: Contrary to Section 149 and 150 of the Penal Code Cap 17.
Particulars of Offence (b)
Asaeli Tamanitoakula, on the 1st day of November 2009 to the 30th day of November 2009, at Nasorowaqa, Bua, in the Northern Division, had unlawful carnal knowledge of a girl namely Lanieta Cagimaiwai without her consent.
FOURTEENTH COUNT
Statement of Offence (a)
RAPE: Contrary to Section 149 and 150 of the Penal Code Cap 17.
Particulars of Offence (b)
Asaeli Tamanitoakula, on the 1st day of January 2010 to the 31st day of January 2010, at Nasorowaqa, Bua, in the Northern Division, had unlawful carnal knowledge of a girl namely Lanieta Cagimaiwai without her consent.
FIFTEENTH COUNT
Statement of Offence (a)
RAPE: Contrary to Section 206 and 207 of the Crimes Decree No. 44 of 2009.
Particulars of Offence (b)
Asaeli Tamanitoakula, on the 1st day of February 2010 to the 28th day of February 2010, at Nasorowaqa, Bua, in the Northern Division, had unlawful carnal knowledge of a girl namely Lanieta Cagimaiwai without her consent.
SIXTEENTH COUNT
Statement of Offence (a)
RAPE: Contrary to Section 206 and 207 of the Crimes Decree No. 44 of 2009.
Particulars of Offence (b)
Asaeli Tamanitoakula, on the 13th day of March 2010, at Nasorowaqa, Bua, in the Northern Division, had unlawful carnal knowledge of a girl namely Lanieta Cagimaiwai without her consent.
2. When this matter originally came up before the Learned Magistrate on 19th March 2010, plea was deferred due to non availability of legal representation to you.
3. On the 30th March 2010 you have a retained counsel and the case was transferred to the High Court.
4. On the 14/05/2010 the case was transferred back to Learned Magistrate to hear the matter. The charge was amended.
5. Since then the case was mentioned on 25/05/10, 08/06/10, 11/06/10, 25/06/10, 28/06/10 and 29/06/10 for various reasons.
6. On the 12/07/2010 when the matter was mentioned before the Learned Magistrate you waived off the Right to have Legal representation, and pleaded guilty to all charges. The learned Magistrate instructed you to have assistance from Legal Aid Commission and adjourned to the next date.
7. This matter was mentioned on the 23/07/10 and adjourned to 02/08/10, the Learned Magistrate acting under Section 190 of the Criminal Procedure Decree and transferred the case to the High Court.
8. In the meantime you have filed 8 grounds of submission for your mitigation, then you have submitted as follows:
"With all due respect, I Asaeli Tamanitoakula is pleading guilty to all charges that were laid against me in my own free will and my mitigating factors are as follows."
9. When the matter was taken up at the High Court, before my brother Judge on 16 August 2010, you have pleaded guilty to all charges. But the prosecution moved to amend charges in the information, therefore the matter is postponed to 17th and 24th instant.
10. On the 24th August 2010 your Counsel from Legal Aid moved for a date to reconsider your plea.
11. On the 25th you appeared with your Counsel and pleaded guilty to all charges in the information sheet. On satisfying with your plea of guilty be unequivocal, I found you guilty and convicted you for all 16 counts, as charged.
12. You submitted you have 4 daughters including the victim and a son.
13. Your Counsel moved time to file submission to mitigate your sentence. I considered the submissions of your Counsel and the submission on sentencing by the State Counsel.
14. Now I consider the relevant Law.
Any person who unlawfully and indecently assaults any woman or girl is guilty of a felony, and is liable to imprisonment for five years, with or without corporal punishment.
Any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent if the consent is obtained by force or by means of threat or intimidation of any kind, or by fear of bodily harm, or by means of false representations as to the nature of the act, or in the case of a married woman, by personating her husband, is guilty of the felony termed rape.
Any person who commits the offence of rape is liable to imprisonment for life, with or without corporal punishment.
206.-(1) The term "consent" means consent freely and voluntarily given by a person with the necessary mental capacity to give the consent, and the submission without physical resistance by a person to an act of another person shall not alone constitute consent.
(2) Without limiting sub-section (1), a person's consent to an act is not freely and voluntarily given if it is obtained:
- (a) by force; or
- (b) by threat or intimidation harm; or
- (c) by fear of bodily harm; or
- (d) by exercise of authority; or
- (e) by false and fraudulent representations about the nature or purpose of the act; or
- (f) by a mistake belief induced by the accused person that the accused person was the person's sexual partner.
(3) The term "penetrate" does not include penetrate for a proper medical, hygienic or law enforcement purpose only.
(4) If "carnal knowledge" is used in defining an offence, the offence, so far as regards that element of it, is complete on penetration to any extent.
(5) "Carnal knowledge" includes sodomy.
(6) The terms –
"genitalia" includes surgically construct genitalia.
"penis" includes a surgically constructed penis, whether provided for a male or female.
"vagina" includes a surgically constructed vagina, whether provided for a male or female.
"vulva" includes a surgically constructed vulva, whether provided for a male or female.
207.-(1) Any person who rapes another person commits an indictable offence.
Penalty – Imprisonment for life.
(2) A person rapes another person if-
(a) the person has carnal knowledge with or of the other person without the other person's consent; or
(b) the person penetrates the vulva, vagina or anus of the person to any extent with a thing or a part of the person's body that is not a penis without the other person's consent; or
(c) the person penetrates the mouth of the other person to any extent with the person's penis without the other person's consent.
(3) For this section, a child under the age of 13 years is incapable of giving consent.
15. As per the Penal Code Section 154 is a punishment up to 5 years imprisonment.
16. Now I consider the tariff to this offence.
For the offence of indecent assault the case of Rokota v the State [2002] FJHC 168; HAA0068J.2002S (23 August 2002) is a case where Shameem J laid out the tariffs as between 12 months to 4 years imprisonment. She highlighted certain cases that clarified the general sentencing principles of indecent assault as follows:
17. "In Ratu Veretariki Kadavu -v- The State Crim. App. No. HAA0049 of 2000L, Prakash J reviewed local sentences for indecent assault. In that case the appellant was convicted of one count of indecently assaulting his 17 years old daughter. The judgment does not specify the nature of the indecent assault, but there was reconciliation between father and daughter. On a review of comparable cases of indecent assault, Prakash J observed that while sentences as low as 1 months imprisonment had been imposed (Ram Khelawan –v- State Crim. App. HAA0038 of 1998L), the general trend was to pass sentences of about 1 to 2 years imprisonment. A review of English authorities produced a not dissimilar result, of around two year's imprisonment. In R –v- Helliwell (1987) 5 Cr. App. R(s) 357, the appellant pleaded guilty to two counts of indecent on his twin daughter who were four years old. The nature of the assault was similar to the assault in this case of fingering the vaginal area. His sentence was reduced from 22 years imprisonment to 9 months. In R –v- Renouf (1988) 10 Cr. App. R(s) 157, (also referred to by Prakash J in Kadavu) the appellants sentence of 3 years imprisonment was reduced to 2 years on three counts of indecent assault. The victim was his step-daughter. Although there were only 3 counts, the assaults covered a period of 12 months, and the assault consisted of fondling of breasts and vagina, and prevailing upon the victim to masturbate the appellant and suck his penis.
18. In Mark Mutch –v- State Crim. App. No. AAU0060.1999, the appellant had been found guilty on two counts of rape and four counts of indecent assault. The trial judge had sentenced him to 7 years imprisonment for the counts of rape, and 4 years imprisonment on the counts of indecent assault. The sentences were to be served concurrently. The State cross-appealed against sentence. The facts disclosed assault was of fondling of breasts and the inserting of fingers into the vagina. The Court of Appeal held that concurrent sentences of four years imprisonment on each of the indecent assault counts, were not manifestly lenient. The sentence for one count of rape (the conviction on the other count having been quashed) was increased to ten years to be served concurrent to the other terms imposed.
19. In Mosese Naisoroi –v- The State Crim. App. No. 53/93, the appellant was sentenced to two years imprisonment for several counts of indecent assault. The sentences were concurrent to each other. In Robin Abhinesh Lal –v- State Crim. App. No. 29/98, Townsley J upheld a sentence of 18 months imprisonment for an 18 year old who indecently assaulted a 22 year old child. In DPP –v- Saviriano Radovu Crim. App. 0006 of 1996, Fatiaki J upheld a 9 month sentence for a 42 year old appellant who indecently assaulted an 8 year old girl.
20. Considering the above line of judgments the tariff for indecent assault range from 12 month to 4 years imprisonment. Considering all circumstances, I commence your sentencing at 3 years imprisonment.
21. For aggravating factors which I discuss in details under rape charges, I increase 3 years imprisonment. Now your sentence is 6 years.
22. Considering your mitigating circumstances which will be elaborated in rape charges, I reduce 3 years. Now your sentence is 3 years imprisonment.
23. Now I consider charges of rape, you have 15 counts of rape, under the sections in Penal Code and the Crimes Decree states that the punishment on life imprisonment up to life term.
24. Tariff to the offence of rape was discussed in following cases.
In the case of State v Cakau FJHC 141; HAC010.2010 (24 April) Fernando J highlighted the cases where Shameem J laid down the starting point for the rape of children and also the case of Drotini v The State (2006) FJCA 26; AAU0001.2005S (24 March 2006) where the FCA had confirmed the sentence of rape to 11 years. In State v Cakau the accused was sentenced to 11 years.
25. In the case of State v Simione Talenasila has the exact same facts and circumstances of this case where the accused indecently assaulted and raped his daughter. The matter was transferred up for sentencing and the accused after all considerations was sentenced to 16 years imprisonment.
26. In State –v- Prabhu Lal [2007] HAC 3/05B Sentence 24 May 2007 per Shameem J; on one count of indecent assault and two of rape, rape of then 9 year old daughter on 2 occasions over 3 years, instead of giving her love and protection, father made her a target of his lustful desires causing her not only physical pain but unimaginable mental trauma, violated her, and broke all the rules not only of a father daughter relationship but of civilised human society. The facts case merited a sentence of more than 11 years but it is not so manifestly lenient that warrants interference by the Court.
27. Considering all above cases the tariff to the offences can be between 10 years to 16 years imprisonment. Considering the facts of the case, I commence your sentencing at 13 years imprisonment.
28. Now I consider aggravating factors.
29. Considering all above aggravating factors, I add 7 years. Now your sentence is 20 years.
30. Now I consider your mitigating circumstances as follows:
Considering all above mitigating circumstances, I reduce 4 years. Now your sentence is 16 years.
31. I am mindful that Government and the entire world is making all endevours to protect children from Sexual Abuse and Exploitation. When a person in authority, such as a position of a father commits this sort of crime against his own daughter, should be condemned and shown no mercy.
Having your other children in mind, I impose a deterrent punishment to you.
32. 30 days to appeal.
33. Since you have pleaded guilty, I order your both sentences to run concurrently. Your sentence is 16 years imprisonment.
S. Thurairaja
JUDGE
Solicitors: - Office of the Director of Public Prosecutions for State
- Office of the Legal Aid Commission for Accused
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