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State v Navaki [2012] FJHC 1374; HAC198.2012S (18 October 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 198 OF 2012S

STATE

vs

ILAI NAVAKI

Counsels : Ms. L. Latu for State
Mr. J. Sovau for Accused

Hearing : 4th October, 2012
Sentence : 18th October, 2012

SENTENCE

1. On 2nd September, 2009, you appeared in the Nasinu Magistrate Court, on the following charge:
   

Statement of Offence

RAPE: contrary to section 149 and 150 of the Penal Code Act 17.

Particulars of Offence

ILAI NAVAKI between the 1st day of January to the 31st day of December, 2001 at Nasinu in the Central Division, had unlawful carnal knowledge of V. M. without her consent.

2. You elected to be tried in the Magistrate Court. On 1st February 2010, when the Criminal Procedure Decree 2009 came into force, the Nasinu Magistrate Court, by virtue of section 5 of the Criminal Procedure Decree 2009, had jurisdiction to continue hearing the matter. On 25th November, 2011, the court heard the complainant (PW1), her mother (PW2) and two other police witnesses (ie. PW3 and PW4). A prima facie case was found against the accused, and he choose to give sworn evidence, in his defence. He called no witnesses. So, the court had five witnesses (ie. 4 from the prosecution, and the accused himself) to consider, in order to make a decision on the guilt or otherwise of the accused.
   
3. On 2nd April 2012, the court made a decision. As judge of fact and law, the Learned Resident Magistrate found the accused guilty as charged, and convicted him accordingly. The prosecution's case was largely dependant on the complainant's evidence. The defence's case was one of denial of the complainant's allegation of rape. Rape consisted of three elements; (1) the accused had sexual intercourse with the complainant ie. the accused's penis penetrated the complainant's vagina; (2) without the complainant's consent and (3) the accused knew the complainant was not consenting to sex, at the time.
   
4. The complainant's evidence satisfied all the elements of rape described above. The complainant said, the accused had sexual intercourse with her, at the material time, ie. his penis penetrated her vagina for about 20 minutes. She said, she did not consent. It was obvious from her evidence that the accused knew she was not consenting to sex at the time. In any event, as she was about 7 years old at the time of the rape, the law stated that children below 13 years cannot, as a matter of law, give their consent to sex, since they are incapable of knowing such a thing, at that age: see Robert Lesarian Howard's case [1966] 50 Cr. App. R. 56 [English Court of Appeal] and Halsbury's Laws of England, Volume 11(1), 4th edition, Butterworths, 2006. So, in this case, proof of element no. 1 of rape (i.e. accused penis penetrates complainant's vagina) leads to the presumption in law that the complainant did not consent (element no. 2), and he knew she was incapable of consenting at the time (element no. 3). In my view, the Learned Resident Magistrate's findings of facts were such, that the offence of rape was proved beyond reasonable doubt by the prosecution. I accept the Learned Resident Magistrate's finding of facts, and I find he was correct in finding the accused guilty as charged.
   
5. 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 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.
   
6. Since the complainant in this case was a child, the tariff for the rape of a child 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.
   
7. The aggravating factors were as follows:
   
   • (i) You were a step father to this child complainant for 7 years. She saw you as her father. You were her mother's de facto husband. She trusted you as a stepfather, and relied on you for support and counsel. Yet, at the age of 7 years old, you violated her trust in you, by raping her. This is a serious abuse of her trust in you. You exploited her naivety, and ruined her life by offending against her.
     
   • (ii) The courts have said before, and will say again that, those who sexually violate young children will have to accept that they will be given a long prison sentence, as a warning to other would be offenders. The children of this nation are the future of this country, and anyone found guilty of violating them will be dealt with severely.
     
   • (iii) According to her mother, the child complainant suffered after the incident. She lost weight, and was often quiet and reserved. She was no longer playful as a child she used to be before. Her life as a child has been ruined by you, and you will have to atone for this.
     
   • (iv) Your offending showed you utter disregard for the welfare interest of this girl, and her right to a peaceful life. You will have to pay with the loss of your liberty.
     
8. The mitigating factors were as follows:
   
   • (i) You are 42 years, with a de facto partner, and a son;
   • (ii) You have 1 previous conviction;
   • (iii) You are employed as a farm hand, earning $100 per week;
   • (iv) You have been remanded in custody from 30th August 2012 to 18th October 2012, a period of approximately 2 months.
     
9. I start with a sentence of 10 years imprisonment. I add 6 years for the aggravating factors, making a total of 16 years imprisonment. For the mitigating factors, I deduct 1 year, leaving a balance of 15 years. Mr. Ilai Navaki, I sentence you to 15 years imprisonment for the rape of the child complainant, and you are to serve a non-parole period of 12 years imprisonment.
   
10. The child's name is permanently suppressed from the mass media to protect her privacy and to assist her recover from her ordeal.
    

Salesi Temo
JUDGE

Solicitor for State : Office of Director of Public Prosecution, Suva.
Solicitor for Accused : Legal Aid Commission, Suva.