Home | Databases | WorldLII | Search | Feedback High Court of Fiji

State v Tuwai [2011] FJHC 287; HAC075.2010S (24 May 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 075 OF 2010S

STATE

vs

SAULA TUWAI

Counsels: Ms. J. Segran for the State
Mr. S. Fa for the Accused
Hearing: 18th November, 2010; 17th March 2011
Sentence: 24th May, 2011

SENTENCE

1. Saula Tuwai, you were charged with five counts of "indecent assault", contrary to section 154(1) of the Penal Code, Chapter 17; three counts of "rape", contrary to sections 149 and 150 of the Penal Code; three counts of "rape", contrary to sections 207(1) and 207(2)(a) of the Crimes Decree 2009, and one count of "sexual assault", contrary to section 210(1)(a) and 210(2) of the Crimes Decree 2009. In total, you were charged with 12 sexual offences.

2. In the presence of your counsel, the above charges were put to you on 18th November 2010, and you pleaded guilty to all of them. On 17th March, 2011, the prosecutor read their summary of facts in court.

3. Briefly the facts were as follows. The female complainant was born on 3rd June 1995. At the age of 3 years old, her parents separated. Her father was your wife's brother. The 3 year old female child came to live with you and your wife, as uncle and aunt. The two of you began to bring up this child, as one of yours. In 2003, when the female complainant was 8 years old, you began to abuse her by bathing her, and repeatedly fondled her vagina and breasts, by using your hands and fingers. You watched her when she was naked. These abuses continued in 2004, 2005, 2006 and 2007.

4. In 2008, the female complainant turned 13 years old. Your abuse on her reached another level. You began to rape her repeatedly. You had sexual intercourse with her without her consent, and you knew she was not consenting to sex, at the time. After raping her, you threatened to kill her, if she told anyone. You did the above to her on numerous occasions. In 2009, you repeated the above abuse on the female complainant, on numerous occasions. You often performed indecencies on her, by licking her vagina, on numerous occasions. In 2010, the above abuse continued, until an aunt confronted the female victim with the abuse.

5. The matter was reported to the police. An investigation was carried out. The female complainant was medically examined on 24th March 2010, at CWM Hospital. The medical report confirmed the above sexual abuse. You were caution interviewed by police on 30th and 31st March 2010, and you admitted the offences to the police. You were formally charged in the Suva Magistrate Court on 1st April 2010. The case was called in the High Court on 16th April 2010.

6. After the prosecution presented the above facts, the court checked with your counsel to see that you have admitted each element of the charge you pleaded guilty to. On your behalf, your counsel admitted each element of indecent assault, rape and sexual assault. On that basis, the court found you guilty as charged on all counts, and convicted you accordingly, on each count.

7. Of the sexual offences you have committed, "rape" is the most serious. Under the Penal Code and Crimes Decree 2009, the maximum sentence is life imprisonment. You started to rape this girl when she was a child in 2008, that is, she was 13 years old at the time. Under the Juveniles Act, Chapter 56, a child is "a person who has not attained the age of 14 years". This makes your rape offending in 2008 very serious. The starting point for the rape of a child is 10 years imprisonment, whereas for an adult, it is 7 years imprisonment. In any event, the tariff for rape is a sentence between 7 to 15 years imprisonment: see Mohammed Kasim v The State, Criminal Appeal No. 21 of 1993, Fiji Court of Appeal; Mark Lawrence Mutch v State, Criminal Appeal No. AAU 0060 of 1990, Fiji Court of Appeal; The State v N. K., Criminal Case No. HAC 155 of 2010, High Court, Suva; State v Simione Talenasila, Criminal Case No. HAC 11 of 2010, High Court, Lautoka. The actual sentence will depend on the mitigating and aggravating factors.

8. "Indecent assault" carries a maximum sentence of 5 years imprisonment. The tariff for "indecent assault" is a sentence between 1 to 4 years imprisonment. The more serious the indecent assault is, the higher the sentence will be: see Ratu Penioni Rakota v The State, Criminal Appeal No. HAA 0068 of 2002S, High Court, Suva; Sikeli Nayate v The State, Criminal Appeal No. HAA 46 of 2008, High Court, Suva.

9. "Sexual assaults" carries a maximum sentence of 14 years imprisonment. It is an aggravated form of indecent assault. The tariff for this offence has yet to be established.

10. The mitigating factors in your case were as follows:

(i) you pleaded guilty to the offence, and therefore saved the court's time, and avoided the need for the complainant to relieve her ordeal in the courtroom;

(ii) you co-operated with the police, by admitting to the offences, when caution interviewed on 30th and 31st March 2010;

(iii) at the age of 63, this is your first offending;

(iv) you are married, with 4 children to support;

(v) you have apologized to the victim and her family, and it appeared, they have forgiven you.

11. The aggravating factors in your case were as follows:

(i) A serious breach of trust. This girl was put in your custody at the age of 3 years, when her parents separated. She looked to you as a father and/or grandfather. She was your wife's niece. Yet, you abused this trust by preying on this child from the age of 8 years to 15 years, when you indecently assaulted and raped her on numerous occasions, for a period of 8 years;

(ii) Your offending was a serious assault on the most vulnerable in our society, that is, children. You repeatedly abused this child from the age of 8 years to 15 years. You exploited her naivety as a child. You forgot that she was a human being and she needed to be treated as such, but you turned her into your sex slave, to satisfy your evil desires. For this, you must certainly pay with the loss of your freedom.

12. On the rape charge in count No. 6, I start with a sentence of 10 years imprisonment. For the mitigating factors, I decrease the 10 years by 3 years, leaving a balance of 7 years. For the aggravating factors, I increase the 7 years by 7 years to 14 years imprisonment. Your total sentence for count No. 6 is 14 years imprisonment.

13. I repeat the above process and sentence for all the other "rape" counts.

14. For the "indecent assault" in count No. 1, I start with a sentence of 3 years imprisonment. I decrease the 3 years by 1 year for the mitigating factors, leaving a balance of 2 years. For the aggravating factors, I increase the 2 years by 2 years to 4 years imprisonment. Total sentence for "indecent assault" on count No. 1 is 4 years imprisonment.

15. I repeat the above process and sentence for the other "indecent assault" charges, including the "sexual assault" charge.

16. In summary, I pass the following sentences:

(i) Count No. 1 - indecent assault - 4 years imprisonment.

(ii) Count No. 2 - indecent assault - 4 years imprisonment.

(iii) Count No. 3 - indecent assault - 4 years imprisonment.

(iv) Count No. 4 - indecent assault - 4 years imprisonment.

(v) Count No. 5 - indecent assault - 4 years imprisonment.

(vi) Count No. 6 - Rape - 14 years imprisonment.

(vii) Count No. 7 - Rape - 14 years imprisonment.

(viii) Count No. 8 - Rape - 14 years imprisonment.

(ix) Count No. 9 - Rape - 14 years imprisonment.

(x) Count No. 10 - Rape - 14 years imprisonment.

(xi) Count No. 11 - Sexual Assault - 4 years imprisonment.

(xii) Count No. 12 - Rape - 14 years imprisonment.

17. Given the principle of totality of sentencing, all the above sentences are made concurrent to each other, that is, a total sentence of 14 years imprisonment.

18. You have being remanded in custody from 1st April 2010 to 24th May 2011, a period of approximately 1 year 2 months. To take into account the above, each of the sentence mentioned in paragraph 16 hereof is reduced by 1 year 2 months, as time already served. The new sentence will be as follows:

(i) Count No. 1 - indecent assault - 2 years 10 months.

(ii) Count No. 2 - indecent assault - 2 years 10 months.

(iii) Count No. 3 - indecent assault - 2 years 10 months.

(iv) Count No. 4 - indecent assault - 2 years 10 months.

(v) Count No. 5 - indecent assault - 2 years 10 months.

(vi) Count No. 6 - Rape - 12 years 10 months.

(vii) Count No. 7 - Rape - 12 years 10 months.

(viii) Count No. 8 - Rape - 12 years 10 months.

(ix) Count No. 9 - Rape - 12 years 10 months.

(x) Count No. 10 - Rape - 12 years 10 months.

(xi) Count No. 11 - Sexual Assault - 2 years 10 months.

(xii) Count No. 12 - Rape - 12 years 10 months.

19. The above sentences are concurrent to each other, that is, a total sentence of 12 years 10 months imprisonment. Pursuant to section 18(1) of the Sentencing and Penalties Decree 2009, you are to serve a non-parole period of 10 years 10 months imprisonment. I order so accordingly.

Salesi Temo
ACTING JUDGE

Solicitor for the State : Office of Director of Public Prosecution, Suva.
Solicitor for the Accused : Tevita Fa & Associates, Suva