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State v Tamanalevu - Sentence [2012] FJHC 1298; HAC344.2011S (24 August 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 344 OF 2011S

STATE

vs

LIVAI TAMANALEVU

Counsels: Ms. J. Cokanasiga for State
Mr J. Savou for Accused

Hearings: 13th to 16th August, 2012
Summing Up: 20th August, 2012
Judgment: 20th August, 2012
Sentence: 24th August, 2012

SENTENCE

1. Livai, after a 4 days trial, the three assessors and the court found you guilty of the following charges:
   

FIRST COUNT

Statement of Offence

INDECENT ASSAULT: Contrary to section 154(1) of the Penal Code, Cap 17.

Particulars of Offence

LIVAI TAMANALEVU between the 1st day and 31st day of January 2010 at Kuku, Bau in the Central Division unlawfully and indecently assaulted R. K.

SECOND COUNT

Statement of Offence

INDECENT ASSAULT: Contrary to section 212(1) of the Crimes Decree, No. 44 of 2009.

Particulars of Offence

LIVAI TAMANALEVU between the 1st day of February 2010 and 14th day of May 2010 at Kuku, Bau, Tailevu in the Central Division, unlawfully and indecently assaulted R. K.

THIRD COUNT

Statement of Offence

RAPE: Contrary to section 207(1) and section 207(2)(a) of the Crimes Decree, No. 44 of 2009.

Particulars of Offence

LIVAI TAMANALEVU on the 15th day of May 2010 at Kuku, Bau, Tailevu in the Central Division, had carnal knowledge of R. K without her consent.

FOURTH COUNT

Statement of Offence

RAPE: Contrary to section 207(1) and section 207(2)(a) of the Crimes Decree, No. 44 of 2009.

Particulars of Offence

LIVAI TAMANALEVU between the 1st day of August 2010 and 31st August 2011 at Kuku, Bau, Tailevu in the Central Division, had carnal knowledge of R. K without her consent.

2. The court then convicted you on all the four counts. Briefly, the facts were as follows. The female complainant was born on 24th July 1994. She was the child of your wife's younger sister. So, she was your niece by marriage. In December, 2009, the female complainant lived with her relatives in Nadi. She was 15 ½ years old at the time. Her parents were in the United States. In January, 2010, it was discovered that the complainant was 4 to 5 months pregnant. You and your wife offered to take her to your village at Kuku, Tailevu, to look after her and her child.
   
3. Her family in Nadi agreed, and in January 2010, you and your wife took the complainant to Kuku, Tailevu. There, she became part of your family, which included you, your wife and your only female daughter – about the same age as the complainant. As soon as she arrived in your house, at Kuku, you secretly began to abuse her by fondling her breast, body and kissing her in the neck and mouth. You repeated these on numerous occasions, between January and May 2010, when your wife and daughter were away.
   
4. On 15th May, 2010, you raped her in your house. Thereafter you began to rape her twice a week, until she could not take your abuse anymore, and she fled to her relatives in Nadi, in August 2011. So, in a sense, you repeatedly rape this complainant twice a week for more than 1 year 2 months. She complained to her aunty, your wife, but she didn't believe her, and she took your side. For the abuse you have done on this complainant, you have to accept that your liberty will have to be taken away from you.
   
5. I note you have 11 previous convictions beginning in 1987, but I will disregard 10 of them because they are more than 10 years old. In the last 10 years, you have only 1 previous conviction of being "found in possession of dangerous drugs" in 2008. I have taken into account your well prepared plea in mitigation, including your antecedent report, and the victim impact report. I note you disputed some of the matters contained in the victim impact report. I have noted your character references from the church and the village, including your counsel's submission on sentence. I have also taken into account the prosecution's submission on sentence.
   
6. As I have said in State v Poate Rainima, Criminal Case No. HAC 034 of 2011S, High Court, Suva, "rape" is always a serious offence. It carries a maximum sentence of life imprisonment. It is the worst form of sexual assault on an individual. It is an unwanted invasion of a person's body without that person's consent. Consequently, the courts take a dim view of it, and have set a tariff of 7 to 15 years imprisonment. The worse form of rape is reserved for the higher end of the tariff. see Mohammed Kasim v The State, Criminal Appeal No. 21 of 1993, Fiji Court of Appeal; Bera Yalimaiwai v 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. For "indecent assault", the maximum sentence is 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. The actual sentence will depend on the aggravating and mitigating factors.
   
8. The aggravating factors were as follows:
   

(i) This complainant looked to you and your wife, as her uncle and aunty. Her mother is your wife's younger sister. She was in a vulnerable situation, because her parents were in the United States. You and your wife offered to look after her and her child in Kuku Village, Tailevu. Her relatives in Nadi, and she herself, trusted you in your above undertaking. But as soon as she arrived in your house, at Kuku, Tailevu, you began to secretly abuse her by indecently fondling her breast and body, including kissing her in the neck and mouth. These indecent acts were often done when your wife and daughter were away from home. This was a serious breach of trust by person of authority, since she looked to you as an uncle.

(ii) You did not stop there. On 15th May, 2010, while she was 9 months pregnant, you did the unthinkable by raping her, in your house. This is not the way to treat a pregnant woman. Your sexual assault on her was so forceful to the extend that she gave birth the next day ie. 16th May 2010. One week thereafter, you turned her world into a living hell. You began to rape her twice a week for the next 1 year 2 months. She complained to your wife – her aunty – but she never believed her. She was fed up with your abuse that she fled in August 2011 to her relatives in Nadi. She then reported the matter to police. Your treatment of this complainant was the worst form of abuse coming from a 44 year old uncle, towards her 15 ½ to 16 years old niece.

9. The mitigating factors were as follows:
   

(i) You are 44 years old, married with a 17 years old daughter.

(ii) You are the sole breadwinner for the family, although your wife assists by being a food vendor, twice a week.

(iii) You are an active member of the village and the church.

(iv) You have been remanded in custody for the last 4 days.

10. Because the rape offences are serious, I will start sentencing on them. On count no. 3, I start with a sentence of 9 years imprisonment. For the aggravating factors, I increase the same by 6 years to 15 years imprisonment. For the mitigating factors, I decrease the same by 1 year to 14 years imprisonment. On count no. 3, I sentence you to 14 years imprisonment.
    
11. On count no. 4, I repeat the process and sentence in count no. 3.
    
12. On the indecent assault charge in count no. 1, I start with 2 years imprisonment. I increase the same by 1 year to 3 years for the aggravating factors. I decrease the same by 6 months to 2 ½ years imprisonment for the mitigating factors. On count no. 1, I sentence you to 2 ½ years imprisonment.
    
13. I repeat the above process and sentence for count no. 2.
    
14. In summary, your sentences are as follows:
    

15. Given the principle of totality of sentencing, I order that the above sentences are to be served concurrently, that is, a total sentence of 14 years imprisonment. Livai, for the offences you have committed against the complainant, I sentence you to 14 years imprisonment, with a non-parole period of 12 years imprisonment, effective forthwith.
    

Salesi Temo
JUDGE

Solicitor for the State: Office of the Director of Public Prosecutions, Suva
Solicitor for Accused: Legal Aid Commission, Suva