IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 035 OF 2015LAB

STATE

vs

NEMANI MATAKI

Counsels	:	Ms. A. Vavadakua for State
Mr. A. Paka for Accused

Hearings	:	13 and 14 December, 2016
Sentencing	:	15 December, 2016
_____________________________________________________________________________________ 

SENTENCE
_____________________________________________________________________________________ 

1.	On 13 December, 2016, in the presence of his counsel, the following information was put to the 	accused:
FIRST COUNT
Statement of Offence
	
	ASSAULT WITH INTENT TO COMMIT RAPE: Contrary to section 209 of the 	Crimes Decree No. 44 of 2009.
            Particulars of Offence

	NEMANI MATAKI  on  the 11th  day  of  June  2015, in Savusavu, in the Northern 	Division, assaulted S.D., with intention of raping her.

SECOND COUNT
(REPRESENTATIVE)
Statement of Offence
	
	RAPE: Contrary to section 207 (1) and 2 (a) of the Crimes Decree No. 44 of 	2009.
	
             Particulars of Offence

	NEMANI MATAKI  on  the 11th  day  of  June  2015, in Savusavu, in the Northern 	Division, had carnal knowledge of S.D., without her consent.

THIRD COUNT
Statement of Offence
	
	RAPE: Contrary to section 207 (1) and 2 (a) of the Crimes Decree No. 44 of 	2009.
	
         Particulars of Offence

	NEMANI MATAKI  on  the 12th  day  of  June  2015, in Savusavu, in the Northern 	Division, had carnal knowledge of S.D., without her consent. 

FOURTH COUNT
Statement of Offence
	
	RAPE: Contrary to section 207 (1) and 2 (a) of the Crimes Decree No. 44 of 	2009.
	
        Particulars of Offence

	NEMANI MATAKI  on  the 13th  day  of  June  2015, in Savusavu, in the Northern 	Division, had carnal knowledge of S.D., without her consent. 

FIFTH COUNT
Statement of Offence
	
	RAPE: Contrary to section 207 (1) and 2 (a) of the Crimes Decree No. 44 of 	2009.
	
          Particulars of Offence

	NEMANI MATAKI  on  the 14th  day  of  June  2015, in Savusavu, in the Northern 	Division, had carnal knowledge of S.D., without her consent. 

SIXTH COUNT
(REPRESENTATIVE)
Statement of Offence
	
	RAPE: Contrary to section 207 (1) and 2 (a) of the Crimes Decree No. 44 of 	2009.

                        Particulars of Offence

	NEMANI MATAKI  on  the 15th  day  of  June  2015, in Savusavu, in the Northern 	Division, had carnal knowledge of S.D., without her consent. 

SEVENTH COUNT
Statement of Offence
	
	RAPE: Contrary to section 207 (1) and 2 (a) of the Crimes Decree No. 44 of 	2009.
	
      Particulars of Offence

	NEMANI MATAKI  on  the 16th  day  of  June  2015, in Savusavu, in the Northern 	Division, had carnal knowledge of S.D., without her consent. 

2.	He said, he understood the charges. He then pleaded guilty to all the charges.  The court asked 	him whether or not anyone pressured or forced him to plead guilty to the same.  He said, he 	pleaded guilty voluntarily and no-one pressured or forced him to plead guilty to the charges.  The 	matter was then adjourned to 14 December 2016 for the prosecution to prepare their summary of 	facts, antecedent report, victim impact report, previous convictions of the accused and their 	sentence submission.  The defence also needed time to prepare their plea in mitigation.

3.	On 14 December 2016, the prosecution read their summary of facts in court.  They were as 	follows.  Between 11 to 16 June 2015, the female complainant was 20 years old.  The accused 	was 48 years old.  The complainant was the accused’s biological daughter.  The complainant, at 	the time, was staying with an uncle and his family, at a village in Savusavu.  On 11 June 2015, her 	uncle sent the complainant and her cousin to deliver invitation letters to members of the village.  It 	was approximately 7pm at the time.

4.	Outside her uncle’s house, was her father, the accused.  The accused had a knife with him. He 	came to the complainant, put the knife to her neck and forcefully dragged her to the bushes by 	holding her T-shirt.  The accused forced the complainant to walk for one hour to a farm house in 	Vatukaca.  He did the above with the intention of raping her (count no. 1).  At the farm house, the 	accused forcefully had sex with the complainant without her consent, and he knew she was not 	consenting to the same at the time (count no. 2).

5.	On 12 June 2015, at about 5am, the accused took the complainant to another spot away from the 	farm house.  He again had sex with the complainant without her consent, and he knew she was not 	consenting to the same at the time (count no. 3).  At 5pm the same day, they returned to the 	farm house.  On 13 June 2015, in the morning, the accused again had sexual intercourse with the 	complainant without her consent, and he knew she was not consenting to the same at the time 	(count no. 4).  The complainant feared for her life and could not resist the accused anymore.  On 	14 June 2015, the accused again had sexual intercourse with the complainant without her 	consent, and he knew she was not consenting to the same, at the time (count no. 5).  On the 	morning of 15 June 2015, the accused repeated the above episode to the complainant and the 	accused was much stronger than her (count no. 6).

6.	On the morning of 16 June 2015, the accused again had sexual intercourse with the complainant 	without her consent, and he knew at the time that she was not consenting to the same (count no. 	7). At 11am on the same day, Pita Tuinadau came to his farm house.  He saw the accused and the 	complainant.  He shared some Bible verses with the accused, and they later returned to the village 	with the complainant.  The matter had been reported to police.  The accused was later charged 	for the complainant’s rape at Savusavu Police Station.

7.	At the end of the prosecution presenting their summary of facts, the court checked with defence 	counsel on whether or not the accused had admitted all the elements of the offences contained in 	the prosecution’s summary of facts.  Defence counsel, on behalf of the accused, said they admitted 	the prosecution’s summary of facts and admitted all the elements of the offences contained in the 	information.  On that basis, the court found the accused guilty as charged on all counts and 	convicted him accordingly on all counts.

8.	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.  The final 	sentence will depend on the presence or otherwise of mitigating and/or aggravating factors.

9.	“Assault with intent to commit rape” carried a maximum sentence of 10 years imprisonment 	(section 209 of the Crimes Decree 2009).

10.	The aggravating factors in this cause were as follows:

(i)	Serious Breach of Parental Trust.  The complainant was your 20 year old daughter.  You are her father.  A father-daughter relationship is a sacred one.  The father is supposed to be a pillar of strength for his daughter.  He is supposed to counsel her, guide her and encourage her to become a confident and useful member of society.  However, you did the unthinkable.  You abused her sexually.  You put a knife to her neck, dragged her away to a distant farm house, and repeatedly raped her therein and near to it.  You will have to be given a custodial sentence, to teach you what is expected of a father.  You should not complain because you have done so much harm to your daughter. 
(ii)	You kept your daughter in custody for about a week while you offended against her.  You bullied her during this time, and you had no regard whatsoever to her right to move around freely.
(iii)	The violence used in committing the offences.  You first put a knife to her neck and dragged her to the bushes with intent to rape her.  You then forced her on a 1 hour march to a distant farm house.  You threatened to hurt her severely if she resisted you.  You are stronger than her and she feared for her life.  You have certainly caused great hardship to the complainant while she was with you.
(iv)	You have caused physical and emotional harm to your daughter.  You hurt her physically while you were offending against her.  You have shattered her confidence as a person.  Only time will heal the emotional scar you have caused this young person.

11.	The mitigating factors are as follows:
	(i)	Although you pleaded guilty 1 year 5 moths 4 days  after  first call in the High Court and on 		the first day set  for trial, you  nevertheless  saved  the  court’s  time  and  the  need for the 		complainant to relieve her ordeal in the courtroom by giving evidence;
	(ii)	You had been remanded in custody from 19 June 2015, that is, approximately 1 ½ years 			ago.
	(iii)	You appear to be remorseful.

12.	I will start with the rape offence in count no. 2.  On count no. 2, I start with a sentence of 13 years 	imprisonment.  I add 6 years for the aggravating factors, making a total of 19 years imprisonment.  	I deduct 1 ½ years for time already served while remanded in custody, leaving a balance of 17 ½ 	years.  I deduct 1 year for you late guilty plea, leaving a balance of 16 ½ years imprisonment.  For 	being remorseful, I deduct another 6 months, leaving a balance of 16 year imprisonment.

13.	I repeat the above process and sentence for counts no. 3, 4, 5, 6 and 7.

14.	On count no. 1, I sentence you to 4 years imprisonment.

15.	The summary of your sentences are as follows:
	(i)	Count no. 1	-	Assault with intent to		-	4 years imprisonment
					commit Rape
	(ii)	Count no. 2	-	Rape				-	16 years imprisonment
	(iii)	Count no. 3	-	Rape				-	16 years imprisonment  
	(iv)	Count no. 4	-	Rape				-	16 years imprisonment  
	(v)	Count no. 5	-	Rape				-	16 years imprisonment  
	(vi)	Count no. 6	-	Rape				-	16 years imprisonment  
	(vii)	Count no. 7	-	Rape				-	16 years imprisonment  

16. 	Because of the totality principle of sentencing, I direct that all the above sentences be made 	concurrent to each other, that is, a final total sentence of 16 years imprisonment.

17.	Mr. Nemani Mataki, for committing various sexual offences against the complainant from 11 to 16 	June 2015, at Savusavu in the Northern Division, I sentence you to 16 years imprisonment, with a 	non-parole period of 15 years imprisonment, effective forthwith.

18.	The complainant’s name is permanently suppressed to protect her privacy.

19.	The above sentence is designed to punish you in a manner which is just, to protect the community, 	to deter other would-be offenders, to set pre-conditions for rehabilitation and to signify that the 	court and the community denounce what you did  to the complainant from the 11 to 16 June 2015.  

20.	You have 30 days to appeal to the Court of Appeal.

	

							Salesi Temo
							   JUDGE 

Solicitor for the State		:	Office of the Director of Public Prosecutions, Labasa 
Solicitor for Accused		:	Office of the Legal Aid Commission, Labasa