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State v K.N.P [2013] FJHC 117; HAC079.2012S (15 March 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 079 OF 2012S

STATE

vs

K. N. P

Counsels : Ms. M. Fong for the State
Accused in Person
Hearings : 11th, 12th and 13th March, 2013
Summing Up : 14th March, 2013
Judgment : 14th March, 2013
Sentence : 15th March, 2013

SENTENCE

1. Accused, on 14th March, 2013, after a three days trial, the three assessors unanimously found you guilty as charged on two indecent assault charges, and five rape charges. The incident assault charges were contrary to section 154(1) of the Penal Code, Chapter 17, while the rape charges were contrary to section 149 and 150 of the Penal Code and section 207(1) and (2)(a) of the Crimes Decree 2009. The court agreed with the assessors, and convicted you accordingly, on all those counts.
   
2. The facts of the case were really disturbing. As the father of the 16 years old female complainant, you systematically indecently assaulted and raped her from 2004 to November 2011 – a period of approximately 7 years. You unashamedly committed these crimes in the comforts of your family home, mostly in your daughter's bedroom. You began in 2004 when she was 8 years old and in class 3. You secretly went into her bedroom and indecently assaulted her by rubbing her breast and touching her vagina.
   

3. At times, you fingered her vagina and attempted to insert your erect penis into her vagina. These indecent assaults occurred twice a week from 2004 to 2008. You threatened to beat her up if she told anyone. In 2008, you forcefully had vaginal sexual intercourse with her, when she was only 12 years old. She was in class 7 at the time. She was a child, at the time, and she was incapable of giving her consent. She was disgusted with your behavior. You continued to threaten her not to tell anyone. You repeatedly raped her twice a week, and on some occasion, more than twice a week, from 2008 to November 2011. She never consented to your criminal behaviour, and you well knew she was not consenting, at the time.

4. In November, 2011, your daughter was found to be suffering from bone cancer. In February, 2012, she was 20 weeks pregnant. She was found to be carrying your child. Your criminal behaviour had ruined, not only your daughter's life, but your family's life also.

5. This is what she said in her victim impact report when asked to describe the changes in her life,
   

"...1) The main change occurred was caused by the emotional and psychological effects of the crime. Many people judged not only me but my family. The shame that I was put through because of this is undescribable. Event caused me so much pain. All the years I worked hard to build a reputation and image for myself academically was all for nothing

2) I am still traumatized by what happened to me.

3) I was unable to continue my education and I was isolated from my friends and social life.

4) As for my family relationships, my immediate family, that is, my mother, uncle, grandmother and younger siblings have also been largely affected by this.

5) My younger sister is being teased and bullied at school, thus it's discouraging her to go to school..."

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. 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.
   
8. "Indecent assault" carries a maximum sentence of 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.
   
9. The aggravating factors in this case were as follows:
   
   • (i) For the 19 years I've spent on the bench in Fiji, your case is the worst parental abuse case I've ever come across. A child growing up in a family expects comfort and support from her parents. This is even more so when it concerned the special sacred relationship between a father and his daughter. A father is expected to counsel and support her daughter to become a confident and aspiring member of society. In your case, you did exactly the opposite. Instead of being a pillar of support for your eldest daughter, you completely ruined her life by sexually abusing her from the young age of 8 years old.
     
   • (ii) The above abuse was not a one only event. You repeatedly assaulted her indecently between 2004 to 2008 – a period of 4 years. At the time, she was aged 8 to 12 years old. She was still a child at the time. In fact, you robbed her of her childhood. You did indecencies on her that were beyond description.
     
   • (iii) From 2008, at the age of 12 years, you began to repeatedly rape your daughter, at least twice a week. You accompanied these dreadful crimes with threats to her physical safety. You did this secretly in the comfort of your home. These rapes continued from 2008 to November 2011 – a period of 3 years. You only stopped when it was discovered that she was suffering from bone cancer.
     
   • (iv) Your abuse was only discovered when your daughter was found to be pregnant, with your child, on or about February 2012. Only then, with the support of doctors and her mum, she was able to get over your threats, and reveal your continued abuse of her. For the miseries you have brought on this girl, you must accept that you will have to forfeit your liberties for a very long time.
     
10. The mitigating factors are as follows:
    
    • (i) You are 37 years old, married with three young children aged between 16 and 4 years old;
      
    • (ii) You realized the gravity of what you have done, and apologized to your wife, children and family, in court;
      
    • (iii) You performed your duties as a father, until you committed these offences;
      
    • (iv) You have been remanded in custody since 5th March 2012 to today, that is, approximately 1 year 1 week 2 days.
      
11. I start with the rape offences, as they are the more serious. On Count No. 3, I start with a sentence of 14 years imprisonment. I increase the same by 6 years for the aggravating factors, making a total of 20 years imprisonment. I deduct 3 years for the mitigating factors, leaving a balance of 17 years imprisonment.
    
12. On Count No. 4, 5, 6 and 7, I repeat the process and sentence in Count No. 3.
    
13. On Count No. 1, I start with 2 years. I add 2 years for the aggravating factors, making a total of 4 years. I deduct 1 year for the mitigating factors, leaving a balance of 3 years imprisonment.
    
14. I repeat the above process and sentence for Count No. 2.
    
15. In summary, the sentences are as follows:
    
    • (i) Count No. 1 : Indecent Assault : 3 years imprisonment
      
    • (ii) Count No. 2 : Indecent Assault : 3 years imprisonment
      
    • (iii) Count No. 3 : Rape : 17 years imprisonment
      
    • (iv) Count No. 4 : Rape : 17 years imprisonment
      
    • (v) Count No. 5 : Rape : 17 years imprisonment
      
    • (vi) Count No. 6 : Rape : 17 years imprisonment
      
    • (vii) Count No. 7 : Rape : 17 years imprisonment
      
16. Because of the principle of totality of sentence, all the above sentences are concurrent to each other. In other words, your total sentence is 17 years imprisonment, with a non-parole period of 16 years imprisonment.
    
17. For the misery you have brought on this 16 years old female complainant – your own daughter – I sentence you to 17 years imprisonment, with a non-parole period of 16 years imprisonment, effective forthwith.
    
18. Before I leave this case, this sentence is a warning to fathers who want to abuse their daughters, in the way the accused did in this case.
    
19. The name of the complainant and the accused are permanently suppressed to protect the privacy of the complainant.
    

Salesi Temo
JUDGE

Solicitor for the State : Office of the Director of Public Prosecutions, Suva
Solicitor for Accused : Accused in Person