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State v Moceituba - Sentence [2014] FJHC 548; HAC114.2013 (25 July 2014)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 114/2013

BETWEEN:

THE STATE

AND :

SEMI MOCEITUBA

COUNSEL : Mr.S.Babitu for the State

Accused in Person

Dates of Trial : 22-23/07/2014

Date of Summing Up : 24/07/2014

Date of Judgment : 24/07/2014

Date of Sentence : 25/07/2014

SENTENCE

[Name of the victim is suppressed. She will be referred to as S.L.]

[01] The Director of Public Prosecution had preferred the following charges against the accused above named.

The First Count

Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (b) and (3) of the Crimes Decree No: 44 of 2009.

Particulars of Offence

Semi Moceituba between the 1st day of January 2013 and the 2nd day of June 2013, at Nadi in the Western Division, used his finger to penetrate the vagina of S.L, a 7 year old.

The Second Count

Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (b) and (3) of the Crimes Decree No: 44 of 2009.

Particulars of Offence

Semi Moceituba on the 3rd day of June 2013 at Nadi in the Western Division used his finger to penetrate the vagina of S.L, a 7 year old.

[02] After trial on the charges, the accused was found guilty on all the counts. Accordingly he was convicted on all the charges.

[03] In this case the victim was 07 years old child and the accused is her step-grandfather. She was in class 01 when accused poked his finger in to her vagina. The accused committed the offence for some time after threatening the victim.

[04] The medical evidence revealed that the hymen of the victim is not intact. The doctor expressed an opinion that this is unusual considering the age of the victim.

[05] Accused took up the position that he never poked his finger into victim's vagina and therefore denied the charges.

[06] As per section 207(1) (2) (b) of the Crimes Decree No: 44 of 2009 the maximum sentence for an offence of Rape is imprisonment for life.

Tariff for Rape

[07] In the case of Chand v State [2007] AAU005. 2006S (25 June 2007), the court referred to the case of Mohammed Kasim v The State Appeal 14 of 1993 where the same court observed:

"We consider that any rape case without aggravating or mitigating feature the starting point for sentencing an adult should be a term of imprisonment of 7 years. It must be recognized by the courts that the crime of rape has become altogether too frequent. The sentences imposed by the courts for that crime must reflect an understandable public outrage"

[08] In Sireli v State [2008] FJCA 86; AAU0098 of 2008S (25 November 2008). The court also referred to the case of State v Lasaro Turagabeci & others HAC 0008 of 1996, the court observed:

"The courts have made it clear that rapist will be dealt with severely. Rape is generally regarded as one of the gravest sexual offences. It violates and degrades a fellow human being. The physical and emotional consequences of the victim are likely to be severe. The courts must protect women from such degradation and trauma. The increasing prevalence of such offending in the community calls for deterrent sentence".

[09] In the case of Drotini v The State [2006] FJCA 26; AAU0001.2005 (24 March 2006); the court noted following:

"There are few more serious aggravating circumstances than where the rape is committed on a juvenile girl by a family member or someone who is in a position of special trust. The seriousness of the offence is exaggerated by the fact that family loyalties and emotions all too often enable the offender or other family members to prevent a complaint going outside the family. If the child then remains in the family home, the rapist often had the opportunity to repeat the offence and to hope for the same protection from the rest of the family

Cases of rape by fathers or step-fathers appear before the court in Fiji far too frequently and, in such cases, the starting point should be increased to ten years. Where there are further aggravating circumstances beyond those basic circumstances, such as repeated sexual molestation of any nature, threat of violence or actual violence or evidence that the offender has attempted to persuade other family members to help cover up the offences or discourage complaint to the police, there should be substantial increases above that starting point. "

[10] In State v AV [2009] FJHC24: HAC 192.2008 (2 February 2009) the court stated:-

"Rape is the most serious form of sexual assault. In this case a child was raped. Society cannot condone any form of sexual assault on children. Children are our future. The courts have a positive obligation under the Constitution to protect the vulnerable from any form of violence or sexual abuse. Sexual offenders must be deterred from committing this kind of offences."

[11] The accused is 63 years of age lived with his step-daughter's and son's family. He is a retired Public Works Department worker. He has been in remand since his arrest.

[12] In O'Keefe v State [2007] FJHC: 34 the Fiji Court of Appeal held that the following principle of sentencing:

"When sentencing in individual cases, the court must strike a balance between the seriousness of the offence as reflected in the maximum sentence available under the law and the seriousness of the actual acts of the person"

[13] I have carefully considered these submissions in light of the provisions of the Sentencing and Penalties Decree No: 42 of 2009 especially those of the sections set out below in order to determine the appropriate sentence.

[14] Section 15(3) of the Sentencing Decree provides that:

"As a general principle of sentencing, a court may not impose a more serious sentence unless it is satisfied that a lesser or alternative sentence will not meet the objectives of sentencing stated in Section 4, and sentence of imprisonment should be regarded as the sanction of last resort taking into account all matters stated in the General Sentencing Provisions of the decree".

[15] The objectives of sentencing, as found in Section 4(1) of the Decree, are as follows:

1. To punish offenders to an extent and a manner, which is just in all the circumstances;
   
2. To protect the community from offenders;
   
3. To deter offenders or other persons from committing offences of the same or similar nature;
   
4. To establish conditions so that rehabilitation of offenders may be promoted or facilitated;
   
5. To signify that the court and the community denounce the commission of such offences; or
   
6. Any combination of these purposes.
   

[16] Section 4(2) of the Decree further provides that in sentencing offenders, a Court must have regarded to:

(a) The maximum penalty prescribed for the offence;

(b) Current sentencing practice and the terms of any applicable and guideline Judgments;

(c) The nature and gravity of the particular offence;

(d) The defender's culpability and degree of responsibly for the offence;

(e) The impact of the offence on any victim of the offence and the injury, loss or damage resulting from the offence;

(f) Whether the offender pleaded guilty to the offence, and if so, the stage in the proceedings at which the offender did so or indicated an intention to do so;

[17] Now I consider the aggravating factors:

1. The accused is the step-grandfather of the victim.
2. The accused seriously disregarded and breached the trust between

him and the victim.

3. Accused was 62 years old and victim was 7 years old at the time of

first incident.

4. The accused took advantage of the trust that the victim had placed

on him.

5. The lack of remorse demonstrated by the accused person for what the victim has suffered emotionally, physically as reflected in the medical findings.
6. The accused made the victim to re-live the ordeal again in court in its raw form.
7. The accused made the victim sexually active at very young and tender age.
   

[18] Now I consider the mitigating circumstances:

1. The accused is a first offender.
2. He is 63 years of age and a retired government servant.
3. His wife is not living with him.
4. He is in remand since 08/06/2013.
5. He is suffering from constant spinal pain.
   

[19] Considering all aggravating and mitigating circumstances I take 10 years as starting point. I add 05 years for the aggravating factors and I deduct 02 years for the mitigating circumstances.

[20] Now your sentence is 13 years imprisonment. You have committed the offence on your step-granddaughter who was 07 years old. The act done to the victim by you took away the victim's dignity in the society. You have caused adverse psychological trauma the effect of which is difficult to foresee and assess even by psychologist or sociologist. You have instilled a sense of fear into the victim which may affect her whole life.

[21] Considering all and acting in terms of Section 18(1) of the Sentencing and Penalties Decree 2009, I impose 10 years as non-parole period.

[22] You have 30 days to appeal.

P Kumararatnam

JUDGE

At Lautoka

25/07/ 2014