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State v NS [2011] FJHC 346; HAC 242.2010 (15 June 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 242 OF 2010S

STATE

V

N. S.

Counsels : Ms. P. Low for the State
Ms. M. Savou for the accused
Hearing : 3rd June, 2011
Sentencing : 15th June, 2011

SENTENCE

1. On 3rd June, 2011, in the presence of your counsel, you pleaded guilty to the following charges:

FIRST COUNT

Statement of Offence

RAPE: contrary to Section 149 and 150 of the Penal Code Cap 17.

Particulars of Offence

N. S. between the 1st of January 2004 and the 31st of December 2004 at ... Village, Wainibuka in the Eastern Division had unlawful carnal knowledge of V. R., without her consent.

SECOND COUNT

Statement of Offence

RAPE: contrary to Section 207(1) and 207(2)(a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

N. S. on the 29th day of August 2010 at ... Village, Wainibuka in the Eastern Division had carnal knowledge of V. R., without her consent.

2. The prosecutor read her summary of facts in court. Briefly, they were as follows. In 2004, you were having difficulties in your marital life. Your wife often refused intimacy with you, despite your request. Your child was aged 10 to 11 years at the time. She was attending Class 6. As a result of your marital difficulty, you forced yourself sexually on her, when she was 10 years and approaching 11 years. You had sexual intercourse with her, without her consent. In any event, a child under 13 years is incapable of consenting to sex in law. You knew, at the time that, she was not consenting to sex with you, and was incapable of consenting to sex, as she was a child.

3. On 29th August 2010, at a village in Wainibuka, you again forced yourself on your daughter. She was 17 years old at the time. You invited her to see the new family pig pen. Away from prying eyes, you forced her to take off her clothes. This was in the bush. You then inserted your penis into her vagina, without her consent. You knew at the time that she was not consenting to sex. You later threatened her not to tell anyone about the matter. However, the matter was reported to the police. An investigation was carried out. You admitted the offences when caution interviewed by police. As a result, you were charged with raping your daughter.

4. After the summary of facts were read in court, the court checked with your counsel to see that all the elements of rape were admitted by you. On your behalf, your counsel admitted that, you had sexual intercourse with the complainant, at the material times in counts No. 1 and 2, without her consent, and you knew she was not consenting to sex, at the time. As a result, the court found you guilty as charged on both counts, and convicted you accordingly, on those counts.

5. I know that at the age of 45 years old, this is your first offence. You are married with only one daughter. You earn your living by subsistence farming. According to your lawyer, your wife often belittles you, and continually deprives you of marital intimacy. This was further aggravated by the unkind taunting from your in-laws. I have carefully read all the papers submitted by the parties.

6. Rape is a serious offence. The maximum sentence is life imprisonment. For adults, the tariff 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; Bera Yalimaiwaiv The State, Criminal Appeal No. AAU 0033 of 2003, Fiji Court of Appeal; Navuniani Koroi v The State, Criminal Appeal No. AAU 0037 of 2002, Fiji Court of Appeal and Viliame Tamani v The State, Criminal Appeal No. AAU 0025 of 2003, Fiji Court of Appeal.

7. Since the complainant in this case was a juvenile in 2004, when she was 10 to 11 years old, the tariff for the rape of children is a sentence between 10 to 15 years: see Mark Mutch v The State, Criminal Appeal No. AAU 0060 of 1999, Fiji Court of Appeal; State v Lepani Saitava, Criminal Case No. HAC 10 of 2007, High Court, Suva; The State v AV, Criminal Case No. HAC 192 of 2008, High Court, Suva; State v VV, Criminal Case No. HAC 084 of 2009, High Court, Suva and State v Waqabaca, Criminal Case No. HAC 139 of 2008, High Court, Suva. The actual sentence will depend on the mitigating and aggravating factors.

8. The mitigating factors in your case were as follows. First, you pleaded guilty in this case, and therefore saved the court's time. In addition, you avoided the need for the complainant to re-live her ordeal in the courtroom, by giving evidence. Second, at the age of 45 years old, this is your first offence. Third, you are a person of limited education, reaching only Class 6 level. Fourth, you were remanded in custody from 29th October 2010 to 4th February, 2011, and from 3rd to 15th June 2011 – a period of approximately, 5 months.

9. The aggravating factors in your case were as follows. First, your case involved the rape of a child in 2004. This makes the case even more serious. Children are vulnerable members of our society, and when they are attacked sexually, the courts will step in to protect them. In protecting children, the courts are duty bound to give a deterrent sentence. Second, the complainant was your only child and daughter. Your offending was a gross abuse of parental trust. This child looked to you for protection. You are her father. Yet, instead of being a pillar of strength to her, you became a monster to her. You threw away the special protective and caring relationship between a father and daughter. Third, your offending against this child continued throughout 2004. You accompanied this immoral behavior with continued threats against her not to tell anyone about the matter. You continued to mistreat her, and swore at her, whenever you need to have sex with her. These simply are not the actions of a father. Fourth, you again raped her when she was 17 years old. You showed utter disregard to her safety and her right to be treated as a human being.

10. On count No. 1, I start with a sentence of 11 years imprisonment. For the mitigating factors, I deduct 3 years from the 11 years, leaving a balance of 8 years imprisonment. For the aggravating factors, I add 7 years to the 8 years, making a total of 15 years imprisonment.

11. On count No. 2, I repeat the above process and sentence.

12. In summary, I sentence you to 15 years imprisonment on count No. 1 and count No. 2. Both sentences are concurrent to each other, that is, a total sentence of 15 years imprisonment. Pursuant to section 18(1) of the Sentencing and Penalties Decree 2009, I fix the non-parole period as 11 years imprisonment.

Salesi Temo
JUDGE

Solicitors for the State : Office of Director of Public Prosecution, Suva
Solicitors for the Accused : Legal Aid Commission, Nausori