IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

Criminal Case No.: HAC 02 of 2015

STATE

V

TOMANI CERELALA

Counsels	:	Ms. A. Vavadakua for State
			Mr. K.Ratule (Gibson & Co.) for the accused

Date of Judgment	:6 May 2016
Date of Sentence		:11 May 2016

SENTENCE

[1]	The accused has been convicted of two counts of rape 	of his 10 	year old niece in the year 2014 in Savusavu.

[2]	The facts were that the accused had a house in the village in 	which he lived alone. 

[3]	On the first occasion he called Mere (not her real name) into the 	house. The two of them were inside 	alone. He placed her 	against a wall, removed her trousers and invaded her with a 	finger.

[4]	On the second occasion when he called her in he was 	lying on 	the bed. He gave her some money and then told her to lie down 	on the floor.  He removed her 	clothes and his clothes, lay on 	top of her and started moving up and down.  Mere said it was 	causing pain in her vagina because he was “putting it in”. 

[5]	She said that there were several occasions that he did 	this and 	on each occasion he would give her money to buy sweets and 	gum. 

[6]	The incidents came to light when an Aunt noticed that 	she had 	unexplained sums of money and observations and persistent 	enquiry of Mere revealed the relationship. 

Mitigation

[7]	In written submissions in mitigation, Counsel pleads for 	mercy. The accused is 49 years old and separatedfrom his 	wife for 17 years.He has one son who lives in Suva. At the 	relevant time he was a farmer within the village 

[8]	He is a first offender and is said to be very remorseful. 	The Court has noticed that remorse throughout his trial. 

[9]	He has spent 17 months on remand whilst awaiting trial.  The 	maximumpenaltyfor rape is life imprisonment and the 	Supreme Court has said that 	sentences for rape of minors 	should be a term of imprisonment of between 10 and 16 years. 	(AnandAbhayRajCAV003/2014).

[10]	In following that case I take a starting point of 10 years.

Aggravation

[11]	The abuse of a niece by her uncle is a serious breach of trust	and the 37 years age difference makes it very much worse.

[12]	The victim  wasa very shy and impressionable 10 year 	old	at the time and these assaults would almost certainly scar her 	own 	development to sexual maturity.  As this Court said in 	Mario Tauvoli[2011] FJHC 216:

       “Our nation’s children must be protected and they must be allowed
to develop to sexual maturity unmolested. Psychologists tell us that the effect of sexual abuse on children in their later development is profound”.

[13]	A further aggravating feature in this case is that the accused 	enticed the girl with small gifts of money and sweets.

[14]	For these aggravating features I add six years to the starting 	point bringing the sentence up to a term of 16 years. 

[15]	For his clear recordandobvious remorse I deduct two 	years bringing the sentence down to 14 years.

[16]	I deduct the 17 months he has spent in remand 	awaiting trial	and the final sentence that this Court imposes for rape is 	twelve years and five months.

[17]	That is the sentence to be imposed for each of the two 	counts of 	rape. These terms will be served concurrently and he will serve 	a minimum term of 9 years and 6 months before being 	eligible for parole.

							P.K. Madigan
							Judge

At Labasa
11 May 2016