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State v Vakadranu - Sentence [2016] FJHC 895; HAC057.2015 (5 October 2016)

IN THE HIGH COURT OF FIJI AT SUVA

CASE NO: HAC. 057 OF 2015

[CRIMINAL JURISDICTION]

STATE

V

IOWANE VAKADRANU

Counsel : Ms. S. Navia and Mr. S. Seruvatu for State
Mr. S. Tinivata for Accused
Dates of Hearing : 19^th - 21^st September 2016
Date of Summing up: 23^rd September 2016
Date of Judgment : 26^th September 2016
Date of Sentence : 5^th October 2016

SENTENCE

1. Iowane Vakadranu, the assessors returned with the unanimous opinion that you are guilty of the following charges;
   

FIRST COUNT

[Representative Count]

Statement of offence

Rape: Contrary to section 207 (1) and (2)(a) of the Crimes Decree, No. 44 of 2009.

Particulars of offence

IOWANE VAKADRANU between the 1^st day of October 2012 and the 31^st day of December 2013, at Labasa in the Northern Division, had carnal knowledge of Selai Tabua, without her consent.

SECOND COUNT

[Representative Count]

Statement of offence

Rape: Contrary to section 207 (1) and (2)(c) of the Crimes Decree, No. 44 of 2009.

Particulars of offence

IOWANE VAKADRANU between the 1^st day of January 2014 and the 31^st day of August 2014, at Labasa in the Northern Division, penetrated the mouth of Selai Tabua, with his penis, without her consent.

THIRD COUNT

[Representative Count]

Statement of offence

Rape: Contrary to section 207 (1) and (2)(a) of the Crimes Decree, No. 44 of 2009.

Particulars of offence

IOWANE VAKADRANU between the 30^th day of September 2014 and the 31^st day of August 2015, at Tailevu, in the Central Division had carnal knowledge of Selai Tabua, 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

IOWANE VAKADRANU between the 1^st day of September 2013 and the 31^st day of October 2013, at Labasa in the Northern Division, had carnal knowledge of Siteri Tino, without her consent.

2. This court concurred with the assessors’ opinion and you were convicted accordingly.
   
3. You claim that you are a Pastor of a church you established in 2007. Both victims were members of this church during the time material to this case. The victim mentioned in the first three counts was around 18 years old when you first raped her. The victim mentioned in the fourth count was around the age of 20 years at the time of offence. Both victims left their formal education when they were in Form 6 because you preached to them that the education in this world is corrupt. It is said that “education dispels the darkness of ignorance”. In my view, you persuaded your victims to leave their formal education as a part of your plan to thrive on their ignorance.
   
4. You gave the two victims leadership roles in your establishment. You made them believe that you are their doctor. You preached to them that you are their spouse. Claiming that your teachings are based on the Holy Bible, you conditioned the minds of your victims systematically over a period of time, so that they will believe in everything you say and do anything you would tell them to do without questioning. Finally, you isolated them from their families and took them to Labasa where you sexually exploited them. The victim who had been a member of your establishment from the age of 13 years, who remained deceived even at the time she gave evidence in this court; was raped by you on more than one occasion.
   
5. The offence of rape carries a maximum sentence of life imprisonment in terms of section 207(1) of the Crimes Decree 2009. However, the applicable sentencing tariff for the offence of rape where the victim is an adult is an imprisonment term of 7 to 15 years.
   
6. Further, in the case of Kasim v. State [1994] FJCA 25; AAU 0021j.93s (27 May 1994), the Court of Appeal held that the ‘starting point for sentencing an adult should be a term of imprisonment of seven years’.
   
7. You are convicted of 4 counts of rape. These offences are founded on the same facts and they form a series of offences of similar character. Section 17 of the Sentencing and Penalties Decree 2009 (“Sentencing and Penalties Decree”) makes provisions for a sentencing court to consider the totality of the offending when sentencing an offender who had committed more than one offence, provided that the offences are founded on the same facts or the offences form a series of offences of same or similar character.
   
8. Section 17 of the Sentencing and Penalties Decree reads thus;

“If an offender is convicted of more than one offence founded on the same facts, or which form a series of offences of the same or a similar character, the court may impose an aggregate sentence of imprisonment in respect of those offences that does not exceed the total effective period of imprisonment that could be imposed if the court had imposed a separate term of imprisonment for each of them.”

9. Therefore I find it appropriate to impose an aggregate sentence of imprisonment in respect of the four offences in view of the provisions of section 17 of the Sentencing and Penalties Decree. In my view, the dictum in Kasim’s case in relation to the seven year starting point does not apply when imposing an aggregate sentence.
   
10. Considering that there are 4 counts of rape and the fact that there are two victims, I select 10 years as the starting point of your aggregate sentence.
    
11. In view of the following aggravating factors I add 09 years to the starting point;
    1. the gross breach of trust and the abuse of your position as a Pastor though self-appointed;
    2. the pre-planning and the deception involved;
    100. taking advantage of the vulnerability and naivety of the victims;
    4. the age difference of more than 50 years between you and each victim.
       
12. Your counsel has filed a document titled ‘mitigation’ on 28^th September 2016. This document includes certain contents that are not relevant and applicable to a submission in mitigation which I will disregard.
    
13. Your counsel points out under the heading ‘personal details’ that you are 75 years old and married with 4 children.
    
14. The fact that the victims were not threatened and the fact that there was no ejaculation cannot be considered as mitigating factors to reduce your sentence. Your counsel’s submission in that regard is misconceived. Though the presence of those factors may aggravate an offending, their absence cannot be considered to reduce the sentence.
    
15. Considering the following mitigating factors submitted by your counsel, I deduct 04 years of your sentence;
    1. You are a first offender; and
    2. You cooperated with the police.
       
16. Now your final aggregate sentence is 15 years imprisonment. I impose a non-parole period of 13 years in terms of section 18 of the Sentencing & Penalties Decree.
    
17. Both the prosecution and your counsel agree that you have been in custody for 10 months for this case. In view of the provision of section 24 of the Sentencing & Penalties Decree, that period you were kept in custody for this matter will be considered as a period of imprisonment already served by you.
    
18. In the circumstances, you are sentenced to an aggregate imprisonment term of 15 years with a non-parole period of 13 years in respect of the four counts of rape. In view of the time spent in custody, the time remaining to be served is as follows;

Head sentence - 14 years and 2 months

Non-Parole period - 12 years and 2 months

19. 30 days to appeal to the Court of Appeal.
    

Vinsent S. Perera
JUDGE

Solicitors for the State : Office of the Director of Public Prosecution, Suva.
Solicitor for the Accused : Toganivalu & Valenitabua Barristers & Solicitors, Suva.