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State v Curuqara [2014] FJHC 900; HAC.208.2014 (10 December 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 208/ 2014

BETWEEN:

STATE

AND:

1.SERUPEPELI CURUQARA
2. ASIKINASA WAQA

COUNSEL: Ms A Vavadakua for the State

Mr P Tawake for the Accused

Date of Hearing: 09/12/2014.
Date of Sentence: 10/12/2014.
[Name of the victim is suppressed. He will be referred to as P.S)

SENTENCE

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

FIRST COUNT
Statement of Offence

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

Particulars of Offence

SERUPEPELI CURUQARA between 1st of January 2013 to 31st day of December 2013 at Yanuca Village, in the Central Division penetrated the mouth of P.S a child under the age of 13 years with his penis.

SECOND COUNT
Statement of Offence

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

Particulars of Offence

ASIKINASA WAQA between 1st of January 2013 to 31st day of December 2013 at Yanuca Village, in the Central Division had carnal knowledge of P.S a child under the age of 13 years.

THIRD COUNT
Statement of Offence

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

Particulars of Offence

ASIKINASA WAQA on the 19th day of June 2014, at Yanuca Village, in the Central Division penetrated the mouth of P.S a child under the age of 13 years with his penis.

FOURTH COUNT
Statement of Offence

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

Particulars of Offence

ASIKINASA WAQA on the 19th day of June 2014, at Yanuca Village, in the Central Division had carnal knowledge of P.S a child under the age of 13 years.

[02] When the Plea was taken up on the 25th day of November, 2014 the accused persons had pleaded guilty to their respective charges against them. Accepting the Plea to be unequivocal this court found them guilty and convicted them under Section 207(1) and (2) (c) and (3) of the Crimes Decree No: 44 of 2009.

[03] State Counsel submitted following summary of facts of which the accused persons admitted.

[04] The accused persons in this matter are Serupepeli Curuqara (First Accused) and Asikinasa Waqa (Second Accused), aged 21 and 29 respectively. The complainant, P.S is 10 years of age. They are related to the complainant as his Uncles.

1ST COUNT:

Between the 1st day of January 2013 and the 31st day of December 2013, the child Complainant had gone with his grandmother at Yanuca Village for a swim. The first accused then called to the child Complainant to accompany him towards the Bamboo trees, next to a creek. As they reached the bamboo trees, first accused, took the hands of the child complainant and placed them on his penis and told the child complainant to suck his penis, where he placed his penis into the child complainant's mouth.

While the child complainant was sucking his penis, he heard his grandmother calling, and he wanted to respond, but the accused stopped him from responding. The first accused only ran away when he heard the grandmother approaching.

2ND COUNT:
Between the 1st day of January 2013 and the 31st day of December 2013, the child complainant had gone to the second accused's house, as he had asked the child complainant to massage his legs. While the second accused was being massaged, he made the child complainant lie facing downwards and then he took off the child complainant's pants and penetrated the child complainant's anus with his penis. At that time the complainant was still 10 years old. In 2013, the second accused did this conduct to the child complainant more than once.

3RD COUNT:
On the 19th day of June 2014, at Yanuca Village, the child Complainant was picking up some rubbish around his house after school and was called to the second accused person's house. As he went to the second accused's house, the second accused was seated on his bed and called the child complainant to go to him. He then drew the curtains that separates the living room from the bedroom and asked the child complainant to wait for him in his bedroom. The second accused then went and had his tea and came back to the bedroom, removed his pants and told the child to suck his penis. At that time P.S, the child complainant was a child under the age of 13 years.

4TH COUNT:
After doing what is stated above under 3rd Count. The second accused then told the child complainant to remove his pants and to lie facing downwards. The second accused then penetrated his penis into the child complainant's anus.

Tariff for Rape
[05] 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 and the sentences imposed by the courts for that crime must more nearly reflect an understandable public outrage"

[06] 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 ".

[07] In State v AV [2009] FJHC24: JAC 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...."

The tariff for rape of a child is between 10-14 years imprisonment. (Mutch v State, Cr. App. AAU0060/99, Mani v State, Cr. App. No.HAA0053/02L, State v Saitava, Cr. Case No: HAC10/07, State v Marawa, Cr. Case No: 016/03, Drotini v State, Cr. App. AAU001/05 and State v Tony, Cr. App. No. HAA003/ (08)"

[08] The first accused was born on 31/03/1993 and was 20 years old at the time of offending. He is single and he is a farmer. He has studied up to class 7 at Primary level. His father has passed away and he looks after his mother and his sister with the help of his brother (second accused).

[09] The second accused was born on 24/04/1986 and was 27 years old at the time of offending. He is single and he is a farmer. He has studied up to class 7 at Primary level. His father had passed away and he looks after his mother and the sister.

[10] I have carefully considered these submissions in light of the provisions of the Sentencing and Penalties Decree No: 42 of 2009 especially Sections 4(1), 4 (2) and 15(3), to determine an appropriate sentence.

[11] Now I consider the aggravating factors:

1. The victim was 10 years old, a student at the time of the incident.
2. The victim is the niece of the accused persons.
3. The act done to the victim by the accused persons took away the victim's dignity in the society.
4. The accused persons have betrayed the bond between an uncle and a niece.
5. The accused persons have shattered the close ties of his family, the victim's family and their relatives.
6. The accused persons had committed the act in the settlement which the victim and the accused persons both regarded as their home.
   

[12] Now I consider the mitigating circumstances:

(a) The accused persons pleaded guilty before the commencement of the trial.
(b) By pleading guilty they have saved the victim from having to re-live his ordeal all over again whilst giving evidence.
(c) Accused persons were 20 and 27 years respectively at the time of committing the offence. They are now 21 and 28 years old and have no record of any previous convictions. They are first offenders.

(d) Both accused persons are brothers and come from a very disadvantaged and a poor family. They lost their father when they were small.

(e) Both accused persons support their family.

(f) They co-operated with the police and made confession in their record of Caution Interview Statement.

(f) They have apologized to the victim's family and their family in the traditional manner and this has been accepted by the victim's family.

(h) They are remorseful and seek leniency from this court.

[13] Considering all aggravating and mitigating circumstances I sentence both accused persons as follows:

• For the 1st count against 1st accused I take 10 years imprisonment as the starting point. I add two years for aggravating factors to reach the period of imprisonment at 12 years. I deduct 05 years for the mitigating factors.
  
• For the 2nd count against 2nd accused I take 10 years imprisonment as the starting point. I add two years for aggravating factors to reach the period of imprisonment at 12 years. I deduct 05 year for the mitigating factors.
  
• For the 3rd count against 2nd accused I take 10 years imprisonment as the starting point. I add two years for aggravating factors to reach the period of imprisonment at 12 years. I deduct 05 year for the mitigating factors.
  
• For the 4th count against 2nd accused I take 10 years imprisonment as the starting point. I add two years for aggravating factors to reach the period of imprisonment at 12 years. I deduct 05 year for the mitigating factors.
  

[14] I order sentence of 2nd, 3rd and 4th counts to run concurrent to each other.

[15] In summary each accused persons are sentenced to 07 years imprisonment.

[16] The accused persons are brothers. They committed the offence at the young age. But they pleaded guilty to their respective charges at the very outset.

[17] Considering all and acting in terms of section 18(1) of the Sentencing and Penalties Decree, I impose 05 years as non-parole period.

[18] 30 days to Appeal.

P Kumararatnam
JUDGE

At Suva
10/12/ 2014