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State v PP - Sentence [2012] FJHC 1303; HAC189.2011 (29 August 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 189 OF 2011

BETWEEN:

STATE

AND:

PP

Counsel: Ms. S. Puamau for the State
Mr. T. Lee for the Accused

Date of Trial: 20th August – 22nd August 2012
Date of Judgment: 23rd August 2012
Date of Sentence: 29th August 2012

SENTENCE

1. Name and identity of the virtual Complainant and others were suppressed due to the suppression order issued by me on the request of the State Counsel.
   
2. The Accused PP was charged under Section 207 (1) & (2) (b) of the Crimes Decree for Raping of his step daughter NKS.
   
3. The Accused PP was found guilty after the trial and convicted as charged.
   
4. The Accused PP and the virtual Complainant NKS are related as step father and daughter. The virtual Complainant called PP, 'tata' or father. The offence came to light when a neighbour, after hearing the virtual Complainant crying out "P – kua" "P - mosi". The neighbour looked over the partition between their flats and saw PP masturbating and moving his finger up and down underneath the victim's shorts.
   
5. Section 207 (1) of the Crimes decree, 2009 clearly provides;
   

"207 – (1) Any person who rapes another person commits an indictable offence.

Penalty – Imprisonment for life."

6. Tariff for the offence of this nature is discussed in many cases including Drotini v State Cr. App. AAU001/05, State v Tamanitokula (2010) FJHC 373. HAC 028/2010 (2 September 2010) and The State v Navaunioni Koroi (Unreported) Cri App Case No HAA 050.2002S. It is between 10 years to 20 years.
   
7. Considering the factor that the child is a mentally retarded, I commence your sentence at 14 years imprisonment.
   
8. Aggravating Factors:
   
   • (a) The virtual Complainant is your step daughter;
     
   • (b) You betrayed the trust of father and daughter;
     
   • (c) She is mentally retarded with certain physical incapabilities;
     
   • (d) She had to leave the house of residence because of your act;
     
   • (e) You made the child in secured.
     

Considering the above aggravating factors I increase your sentence by 5 years now your sentence is 19 years imprisonment.

9. Mitigating Circumstances:
   
   • (a) You claim you are 1st offender;
     
   • (b) You claim you are 65 years old; (This factor can be considered in favour and against you)
     
   • (c) Period spent in remand.
     

Considering above mitigating factors I reduce your sentence by 3 years. Now your sentence is 16 years imprisonment.

10 It is noted with deep concern that incestuous rape is becoming more prevalent in our society. All parties concerned should work together to safe guard our children, to take lead in this path this court decides to impose heavy custodial sentence on the perpetrators.

11 I act under Section 18 (1) of the Sentencing & Penalties Decree and impose 13 years as non Parole Period.

12 You are sentenced to 16 years imprisonment and you will not be eligible for Parole until you complete serving 13 years in prison.

13 30 days to appeal to Court of Appeal

S. Thurairaja
Judge

At Lautoka
29th August 2012

Counsels: The Office of the Director of Public Prosecution for State
Legal Aid Commission for Accused