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State v Vila - Sentence [2012] FJHC 907; HAC136.2010 (29 February 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC 136 of 2010

BETWEEN

STATE
Prosecution

AND

NIKO VILA
The Accused

Dates of Trial: 27-28 February 2012
Date of Summing-Up and Judgment: 29 February 2012
Date of Sentence: 05 March 2012

Ms S Paumau for the State
Mr T Terere for the Accused

(Name of the victim is suppressed. She will be referred to as AV.)

SENTENCE

1. The accused stood charged for having committed the offence of rape on one AV on 25 September 2010. After trial, the assessors returned unanimous opinions of 'guilty' against the accused. I, having considered the evidence and my summing-up on the law, concurred with opinions of the assessors and convicted the accused of the offence as charged under Section 207 (2) (1) (b) of the Crimes Decree 44 of 2009.
   
2. The charge was sequel to an act of inserting a finger into the vagina of AV by the accused on 25 September 2010 at Uto in Nadi.
   
3. The accused was a grandfather by relationship to the victim-AV. He was 66 years of age, while the victim was only 06 years. They were living in Uto Village in Nadi with their extended families a few steps apart from each other.
   
4. On the date of the incident, the victim-AV was under the care of witness-Marica, 18, as AV's parents were away from home at work. The accused, having stepped-out of his home, called the victim after showing some beans as the victim was picking chilies at a distance. The victim rushed at the accused's call. She was then taken inside the house and made her lie on a bed after removing her underpants. The accused, thereupon, kissed the victim on her lips and started touching and fondling her vagina resulting in a pain in her genitalia.
   
5. Evidence revealed that she had narrated the incident to witness-Marica, who in turn conveyed it to witness-Iliana. Iliana was a grandmother of the victim-AV by relationship in their extended families, who herself saw the victim being taken inside the house after she [the victim] responded to the accused's call.
   
6. Medical evidence disclosed that the victim had redness around the vagina and that her hymen was perforated as the victim was examined on 27 September 2010. The doctor opined that her findings were consistent with the history complained of by the victim.
   
7. It is in light of the above facts that the accused stands convicted under Section 207 (1) (2) (b) of the Crimes Decree 2009 for rape, which expanded the traditional scope of the offence to include inter alia the like instances of penetrating a vagina with any object without the consent of a woman. In this case, as provided for under Section 207 (3) of the Decree, the issue of consent became immaterial as the victim-AV was only six years of age and was incapable of giving consent under the law.
   
8. The offence of rape is very serious in that it is triable only by the High Court, which attracts the punishment of life imprisonment under Section 207 (1) of the Decree irrespective of the manner of offending and the status of the victim.
   
9. The range of sentence for rape of children has been set between 10-15 years by sentencing guidelines. In State v Mario Tauvoli; [2011] FJHC 216; HAC 027/2011, a starting point of 12 years was taken to punish a rape convict where the victim was a fourteen year old step-daughter and a term of 13 years was imposed with a non-parole period of 10 years.
   
10. In State v Anand Abhay Raj (HAC 09/2010), a similar range of sentence was applied to deal with an offender who had raped a ten year old step-daughter, having picked-up 12 years as the starting point to reach a mandatory 12 year period of sentence.
    
11. Learned counsel for the State and for the accused accepted the above range of sentence for the rape of children. They also submitted to court aggravating and mitigating circumstances in order to assist court in regard to the imposition of an appropriate sentence on the accused. I have considered their submissions carefully in light of the provisions of the Sentencing and Penalties Decree in determining the sentence.
    
12. The victim in this case was only six years of age at the time of the incident. She was just stepping into her formative ages and moving around playing even around the time of the incident. The accused, who was 66 years old, had three sons - all above 39 years of age - and nine grandchildren.
    
13. The accused, in the circumstances, either knew or ought to have known the value of children; and, that they needed protection and shelter from adults. Despite that, the accused raped the little granddaughter to satisfy his unnatural lust occasioning a serious breach of trust and morality.
    
14. The conduct of the accused was a calculated one as he took advantage of child-gullibility and practiced a trick on the victim to lure her to his house by showing some beans in order to engage in the unlawful sexual act.
    
15. The accused's engagement in his unilateral sexual activity with a little girl who was insensitive to such activity is most abhorrent. This kind of immoral act on a little girl in the calibre of AV is bound to yield adverse results and psychological trauma, the effect of which is indeed difficult to foresee and assess even by psychologists or sociologist. The depravity of the accused in committing the offence should be denounced to save little children for their own future; and, the men of the accused's calibre should not be allowed to deny the children of their legitimate place in the community. In passing down the sentence in a case of this nature, deterrence is, therefore, of paramount importance.
    
16. I am, in the circumstances, inclined to pick up a starting point of 14 years for the sentence in this case to reflect that the victim is very small compared to those in the two cases referred to above. I add two years for the factors in paragraphs 12-15 above, which I consider as seriously aggravating circumstances to enhance the sentence to reach 16 years.
    
17. I do not see favourable circumstances to mitigate the sentence other than the previous record free from blemishes. Although, the offence for which he is convicted now is so serious that his previous good behaviour is outweighed, I nevertheless decide to reduce his sentence by two years as he is a first offender. In the result, I arrive at a term of 14 year-imprisonment.
    
18. The accused has not shown any remorse or repentance. On the contrary, he relentlessly castigated the witnesses saying that they were making up a false allegation at the expense of the little girl to avenge a previous incident of exchange of words between him and the victim's own grandfather, who was a younger brother of the accused. This added, in my view, insult to the injury. While court recognizes that the accused was entitled to advance any proposition in support of his case, court equally recognizes that it should show its displeasure by showing no mercy in the matter of sentence when such allegations are found to be totally ill-founded as in this case.
    
19. Accordingly, I will determine that a 14 year period of imprisonment on the accused is appropriate to meet the principles and objectives of the Sentencing and Penalties Decree. The final sentence, therefore, is 14 years of imprisonment.
    
20. Acting under Section 18 (1) of the Sentencing and Penalties Decree, I order that the accused shall not be eligible for parole until he serves 12 years in imprisonment.
    

Priyantha Nāwāna
Judge

High Court
Lautoka
05 March 2012