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State v Bryson [2010] FJHC 390; HAC112.2009S (10 September 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 112 OF 2009S

STATE

V

HARVEY BRYSON

Counsels: Ms. T. Leweni for the State
Mr. A. Vakaloloma for the Accused

Hearings: 16th to 25th August 2010
Summing Up: 27th August 2010
Judgment: 30th August 2010
Sentence: 10th September

SENTENCE

1. Mr. Harvey Bryson, in a judgment delivered on 30th August 2010, you were found guilty and convicted of the following four counts:

(i) Count No. 1: "Indecent assault on a female", contrary to section 154(1) of the Penal Code, Chapter 17;

(ii) Count No. 2: "rape", contrary to sections 149 and 150 of the Penal Code;

(iii) Count No. 3: "rape", contrary to section 149 and 150 of the Penal Code; and

(iv) Count No. 4: "unnatural offence", contrary to section 175(a) of the Penal Code.

2. The three assessors and the court, after carefully considering the evidence, accepted the prosecution's version of events. These were that, on 22nd January 2007, at Matuku Street, Samabula, you indecently kissed the 6 year old female complainant, on the lips. Then on 23rd January 2007, you raped the same female complainant at Matuku Street, when you deliberately inserted your penis into her vagina, knowing fully well that she was incapable of consenting to such matters. Two years later, in July 2009, you again raped the same female complainant, who was now 8 years old, when you deliberately inserted your penis into her vagina, knowing fully well that she was incapable of consenting to such matters. You did this at Matuku Street, Samabula. After raping her, you then turned her around and forcefully inserted your penis into her anus.

3. I note that you are a first offender at the age of 60 years. I have considered your antecedent report and your written plea in mitigation submitted by your counsel. I note you are single, and you have no children. You are unemployed and you finished your education at class 8 level.

4. In terms of seriousness, "rape" is the most serious, followed by "unnatural offence", and then "indecent assault on a female". "Rape" carried a maximum sentence of life imprisonment (section 150, Penal Code, Chapter 17). At the time of the rape, the female complainant was 6 and 8 years old, that is, she was still a child. This case therefore concerned the rape of a child. The tariff for the rape of a child is a sentence between 10 to 13 years imprisonment: see State v Lepani Saitava, Criminal Case No. HAC 10 of 2007, High Court, Suva: Tevita Poese v State, Criminal Appeal No. AAU 0010 of 2005, Fiji Court of Appeal; State v Fong Toy, Criminal Appeal Case No. HAA 003 of 2008, High Court, Suva; State v Nacanieli Marawa, Criminal Case No. HAC 016 of 2003, High Court, Suva. The actual sentence passed will depend on the aggravating and mitigating factors.

5. "Unnatural offence" carried a maximum sentence of 14 years imprisonment (section 175(a), Penal Code, Chapter 17). In Samisoni Tawake v State, Criminal Appeal Case No. HAA 082 of 2007, High Court, Suva, His Lordship Justice I. Mataitoga reviewed cases on "unnatural offences" in Fiji. His Lordship found that sentences ranged from 3 months to 6 years. In State v Setero Seru, Miscellaneous Case No. 1 of 2001, High Court, Labasa, His Lordship Justice D. Pathik said, a starting point of 7 years imprisonment should be used for unnatural offences against children below 12 years of age. The actual sentence will again depend on the aggravating and mitigating factors.

6. "Indecent assault on a female" carried a maximum sentence of 5 years imprisonment (section 154(1), Penal Code, Chapter 17). The tariff is a sentence between 1 to 4 years imprisonment: see Ratu Penioni Rakota v The State, Criminal Appeal No. HAA 068 of 2002, High Court, Suva; State v. Viliame Tamani, Criminal Case No. HAC 007 of 2003, High Court, Suva. Again the actual sentence will depend on the mitigating and aggravating factors.

7. In this case, the aggravating factors were as follows:

(i) The breach of the victim's mother's trust. The victim's mother trusted you as an extended family relative, and her children's uncle. The victim child looked to you as an uncle, given that her parents were separated. Her mother entrusted you with the care of her small children. You responded in kind. You bathed the children, changed their clothes, and gave them their dinner, when their mother was out at work or attending to other matters. She trusted you with her children. Unbeknown to her, you were secretly abusing her 6 and later 8 years old daughter. You started with indecently assaulting her by kissing her in the mouth in January 2007. Then in the same month, you descended into the unthinkable by raping her at the age of 6 years. Two years later in July 2009, you not only raped her, at the age of 8 years old, but also committed an unnatural act on her. This was the height of deceit and abuse, given that her mother trusted you more with her children, then her own father. You undermined this vulnerable family from within, and yet, at the end of the trial, you showed no remorse whatsoever. However, you must pay for the misery you've brought on this little girl, and the heart ache you've given her family.

(ii) you continually threatened this little child while you were offending against her;

(iii) the little girl suffered injuries to her private parts as a result of your offendings.

8. The mitigating factors were as follows:

(i) this was your first offence at the age of 60 years old;

(ii) you have spent approximately 20 days in police and court custody.

9. On the "rape" sentence, I start with a sentence of 12 years imprisonment. I add 5 years for the aggravating factors, making a total of 17 years imprisonment. For the mitigating factors, I deduct 2 years, leaving a balance of 15 years imprisonment.

10. For the "unnatural offence", I start with a sentence of 7 years imprisonment. I add 5 years for the aggravating factors, making a total of 12 years imprisonment. I deduct 1 year for the mitigating factors, leaving a balance of 11 years imprisonment.

11. For the "indecent assault" offence, I start with a sentence of 2 years imprisonment. I add 2 years for the aggravating factors, making a total of 4 years imprisonment. I deduct 1 year for the mitigating factors, leaving a balance of 3 years imprisonment.

12. I sentence you as follows:

13. Given the principle of totality of sentence, I order all the above sentence to be concurrent to each other, that is, a total sentence of 15 years imprisonment.

14. To assist the female child recover from her ordeal, and to protect her privacy, her name and that of her family are permanently suppressed.

Salesi Temo
ACTING JUDGE

AT Suva
10th September 2010