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State v Seru [2012] FJHC 1069; HAC047.2011 (10 May 2012)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

Criminal Case No: HAC 047 of 2011

THE STATE

v.

SETERO SERU

Counsel: Ms. M. Fong for the State
Ms. M. Lemaki (Duty Solicitor) for the Accused

Date of Sentence: 10 May 2012

SENTENCE

[1] Setero Seru, you stand convicted of two counts of sexual assaults contrary to section 210(1)(a) of the Crimes Decree of 2009. The maximum penalty for this offence is 10 years imprisonment.

[2] The offences were committed between 10 February 2010 and 13 July 2011 at Qeleni village in Taveuni. The offences involve the same victim. At the time of the first assault, the victim was a 9-year old student.

[3] On both occasions, you enticed the victim into a vacant house and got her undressed. You used your penis to stroke the victim’s vagina until you ejaculated. After the incident, you threatened her not to report to anyone. In the second incident, you touched the victim’s vagina and stroked your penis on her anus until you ejaculated. The second incident was witnessed by your brother who then reported the incident to the victim’s grandfather. On 15 July 2011, you were arrested and interviewed under caution. You confessed to the sexual assaults. You were charged and you remained in custody after the court refused you bail.

[4] Later, you challenged the voluntariness of your confession but it was ruled admissible after a voir dire hearing.

[5] Your trial was set to commence on 7 May 2012. On the day of the trial, you pleaded guilty. The timing of your guilty plea leads me to conclude that you have the full realization of the strength of the evidence you faced. The weight that I attach to your guilty plea is based on saving court time and resources and relieving the victim from giving evidence of sexual nature. Your guilty plea is not a reflection of remorse.

[6] You are 35 years old and single. You have attained up to class-8 education. After leaving school you have spent most of your adult life farming.

[7] You are not a stranger to the criminal justice system. On 23 April 2002, Pathik J sentenced you to a total sentence of 6 years imprisonment after you pleaded guilty to three counts of unnatural offences (State v Seru [2002] FJHC 197: HAM0001J.2001B (23 April 2002). Those offences were also committed in Taveuni. The victims were boys aged 7, 8 and 9 respectively. They were sodomized by you. In sentencing you, Pathik J stated:

“A person indulging in this animal-like behavior has to be put away from society for a long time as a deterrent to others minded to act in the manner the accused did.”

[8] I bear in mind that your previous conviction was for sodomy. In the present case, you did not penetrate but you stroked your penis on the victim’s vagina and anus until you ejaculated. Conduct of this nature is equally serious and must be denounced and deterred.

[9] Sexual assault is a new offence under the Crimes Decree and there is no guideline judgment for this offence. The only other case known to this Court in which the offender was sentenced for sexual assault is State v Semi Naulu Criminal Case No HAC041/10Lab). In that case, the offender was an elderly man with previous good character and was suffering from physical disability. He was sentenced to 3 years imprisonment, after pleading guilty to an act of licking the vagina of a 12-year old girl.

[10] In the present case, the victim is of a much tender age. I had an opportunity to see the victim when she attended court for trial. The victim is a timid little girl when compared with your age and physical built. She was vulnerable when the offences were committed. The offences were repeated over a period of 12 months. The sexual assaults were followed by threats to discourage the victim from complaining. These factors aggravated the offences.

[11] The nature and the circumstances of the offences you have committed lead me to conclude that you are a pedophile. You prey on children of a very tender age. Your method of committing the sexual assaults is similar. Past prison sentence has not deterred you. You reoffended after serving 6 years in prison. You are a threat to the community because the likelihood of you reoffending is real.

[12] After having regard to your antecedent and character and the nature of the offences, I declare you to be a habitual offender pursuant to section 11 of the Sentencing and Penalties Decree.

[13] The primary purpose of sentence that applies to you is the protection of the community. There is a need to incarcerate you for a long period of time to protect our children from sexual abuse.

[14] Sexual offences against children are almost becoming an epidemic in our country. It shows a decay of the moral fabric of our society. Repeat offenders of sexual crime against children should expect to be isolated from the society for a long period of time until they pause no threat to the community.

[15] For each count, I use 5 years as my starting point and I add 4 years to reflect the aggravating factors. I reduce 2 years for the guilty plea and 1 year for the remand period. The sentence is 6 years imprisonment on each count and I fix a non-parole period of 5 years.

[16] The two offences are separate episodes of sexual assaults. Although the same victim is involved, the offences are separated by 1-year time gap. To achieve the purpose of sentence that applies in this case, I order the sentences to be served consecutively. The total sentence is 12 years’ imprisonment with a non-parole period of 10 years.

[17] I recommend you undergo counselling in prison as a measure of rehabilitation.

Daniel Goundar
JUDGE

At Labasa
10 May, 2012

Solicitors:
Office of the Director of Public Prosecutions, Labasa for the State
Office of the Legal Aid Commission, Labasa for the Accused