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State v Bulivakarua [2014] FJHC 928; HAC54.2013 (17 December 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No. HAC 54 of 2013

BETWEEN:

STATE

AND:

SAKARAIA BULIVAKARUA

Counsel : Mr Fotofili L and Ms M Chaudhary M for the State
Mr J Savou for the Accused

Date of Hearing : 10 December 2014
Date of Summing Up : 12December 2014
Date of Judgment : 16 December 2014
Date of Sentence : 17 December 2014

SENTENCE

1. You SakaraiaBulivakarua stand convicted for one count of sexual assault contrary to section 210 (1) (a) of the Crimes Decree, which carries a maximum penalty of 10 years of imprisonment period, and one count of rape contrary to section 207(1) and 207(2) (b) of the Crimes Decree, which carries a maximum penalty of life imprisonment.
   
2. You were found guilty and convicted for these two counts by this court subsequent to the hearing of this charges and the unanimous verdict of the three assessors of your guilt.
   
3. It was proved at the conclusion of the hearing that you entered into the room of the victim, while she was sleeping in the bed with her sister in the night.You first turned off the lights and then went to her. You then touched her breast, stomach, bum and private part with your hand. During the cause of these events, you penetrated her vagina with your finger.
   
4. This is a case of sexually abusing of a child under the age of 13 years old by a close family member within the family environment.Sexually assaulting and raping children by close family members in manipulating the family environment and the relationship they have with the victim is a prevalence offence in the society, which needs greater judicial intervention with responsibility in order to demonstrate that such offences are condemned and denounced by the civilised society without any reservation.
   
5. Having considered the section 4 (1) of the sentencing and penalties decree, the main purpose in this sentencing is founded on the principle of deterrence.It is a responsibility of the court, to demonstrate the grave seriousness of the offences of this nature to the public in sentencing.I am mindful of the principle of rehabilitation; however, the court must give priority to deter the offenders and other persons from committing offences of this nature, while preserving the principle of rehabilitation.
   
6. The tariff for the offence of sexual assault is between two to eight years of imprisonment period. (The State v EpeliRatabacacaLaca, HAC 252 of 2011).
   
7. Justice Madigan in EpeliRatabacacaLaca ( supra) has discussed a very helpful guide to sentencing for sexual assault based on the United Kingdom's legal guidelines for sentencing, where his lordship held that;
   

Category 1 ( the most serious)

Contact between the naked genitalia of the offender and naked genitalia face or mouth of the victim,

Category 2

1. Contact between the naked genitalia of the offender and another part of the victim's body,
   
2. Contact with the genitalia of the victim by the offender using part of his or her body other than the genitalia, or an object,
   
3. The contact between either the clothed genitalia of the offender and the naked genitalia of the victim, or the naked genitalia of the offender and the clothed genitalia of the victim.
   

Category 3,

Contact between part of the offender's body ( other than the genitalia) with part of the victim's body ( other than the genitalia).

8. In view of the factual circumstances, this case falls within the second and third category. I accordingly take 4 years as the starting point for the offence of sexual assault.
   
9. In respect of the count of rape, Hon. Chief Justice Gates in AnandAbhay Raj ( Special leave to appeal No. CAV003 of 2014) held that the tariff for rape of a child is between 10 -14 yearsimprisonment period. Having considered the nature of this offending and the seriousness surrounded with the commission of the offence, I select 11 years as the starting point for the count of rape.
   
10. The accused is the fraternal uncle of the victim and had been living in the same house.By committing these offences, you have breached the trust of the victim. You manipulatively used the position of you as a fraternal uncle, to commit this crime. You not only breached the trust of the victim, but also the trust of your elder brother, who allowed you to live with his family in his home. You have exposed the victim to sexual activities without allowing her to reach to sexual maturity in the natural process.The adverse psychological effect of such sexual abuses in the growing ages of a child couldn't be evaluate and foreseen, even by psychologist and sociologist properly. I consider these reasons as aggravating factors of these offences.
    
11. The learned counsel of the accused submitted in his oral migratory submissions that he is the youngest child and his parents are old, hence he needs to look after them. Hon. Chief Justice Gates in AnandAbhay Raj (supra) held that the family circumstances of the accused have a less migratory value. Accused is a 25 years old young first offender. Accused did not express any genuine remorse of committing these offences, wherefore; I do not consider it in his favour in the sentencing.
    
12. Having considered the above mentioned aggravating factors, I increase 2 years for both counts to reach 6 years of interim imprisonment period for the offence of sexual assault and 13 years of interim imprisonment period for the offence of rape. In considering the mitigating factors which I discussed above, I reduce 1 year to reach the final sentence of 5 years for the offence of sexual assault and 12 years of imprisonment for the offence of rape.I do not give any discount for the time the accused spend in remand as he was given bail at his first appearance before the learned Magistrate on 29th of October 2012.
    
13. Accordingly, Mr. SakaraiaBulivakarua, I sentence you 5 years of imprisonment period for the offence of sexual assault contrary to section 210 (1) (a) of the Crimes Decree and 12 years of imprisonment period for the offence of rape contrary to section 207(1) and 207 (2) (b) of the Crimes Decree.Both sentences to be served concurrently. In pursuant of section 18 (1) of the Sentencing and Penalties Decree, you are not eligible for parole for a period of 10 years.
    
14. Moreover, pursuant to section 24 (1) of the Domestic Violence Decree, I make a domestic violence restraining order against the accused person with standard non molestation condition in respect of the victim of this case. This restraining order will be in force until this court or any other court with competence jurisdiction varies or suspends the same. If you breach this restraining order, you will be prosecuted for an offence under the Domestic Violence Decree.
    
15. 30 days to appeal to Court of Appeal.
    

T Rajasinghe
Judge

At Suva
Office of the Director of Public Prosecution for the State
Office of the Legal Aid Commission for the Accused