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State v Toutou - Sentence [2017] FJHC 817; HAC135.2017 (1 November 2017)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 135 of 2017

STATE

v.

TEVITA NAODELE TOUTOU

Counsel: Mr. M. Vosawale with Ms. S. Tivao for State
Ms. V. Filipe for Accused

Hearing: 24^th to 26^th October 2017
Summing Up: 30^th October 2017
Judgment: 31^st October 2017
Sentence: 01^st November 2017

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SENTENCE

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1. The Accused is found guilty and convicted for one count of Sexual Assault, contrary to Section 210 (1) (a) of the Crimes Act, which carries a maximum penalty of ten years imprisonment and two counts of Rape, contrary to Section 207 (1) and (2) (a) of the Crimes Act, which carries a maximum sentence of life imprisonment.
   
2. It was proved at the conclusion of the hearing, that you had indecently and unlawfully fondled the breast and touched the vagina of the complainant during the period between 1st of February 2010 and 31st of December 2010. Moreover, it was proved that you had penetrated the vagina of the complainant with your penis without her consent during the period between 1st of January 2012 and 31st of December 2012. It was further proved that you had penetrated the vagina of the complainant with your penis without her consent during the period between 1st of January 2013 to 12th of March 2017.
   
3. This is a case of a juvenile rape by a known and closed person in the domestic environment. You are the step-father of the complainant. Such crimes certainly cause multitude of physiological trauma in the life of the juvenile victim. The juvenile will definitely lose the trust and confident not only in herself, but also in her family and domestic environment.
   
4. The frequent occurrence of such crimes, indeed endangers the function and the progress of the society with healthy and confident population. Hence, it is the responsibility of the court to deter the offenders of this nature or other persons from committing crimes of this nature. Accordingly, this sentence is founded on the principle of deterrence.
   
5. Hon. Chief Justice Gates in Anand Abhay Raj [2014] FJSC 12; CAV0003.2014 (20 August 2014) held that the tariff for rape of a juvenile is between 10-16 years’ imprisonment period.
   
6. Justice Madigan in State v Epeli Ratabacaca Laca - Sentence [2012] FJHC 1414; HAC252.2011 (14 November 2012) has expounded the tariff for the offence of Sexual Assault as between 2 years to 8 years’ imprisonment, where his Lordship held that:
   

“The maximum penalty for this offence is ten years imprisonment. It is a reasonably new offence, created in February 2010 and no tariffs have been set, but this Court did say in Abdul Kaiyum HAC 160 of 2010 that the range of sentences should be between two to eight years. The top of the range is reserved for blatant manipulation of the naked genitalia or anus. The bottom of the range is for less serious assaults such as brushing of covered breasts or buttocks.

A very helpful guide to sentencing for sexual assault can be found in the United Kingdom's Legal Guidelines for Sentencing. Those guidelines divide sexual assault offending into three categories:

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. 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)”

7. The complainant was twelve years when you sexually assaulted her in 2010. In the year 2012, she was fourteen years old. Hence, I find the level of harm is substantially high in this crime.
   
8. You have assaulted the complainant while unleashing this disgraceful sexual exploitation on her. You have punched her on her thighs, chest, mouth and head when she tried to resist or shout for help. Furthermore, you have threatened her that you will kill her and her mother, if she tells anyone else. I accordingly find that you have used substantial amount of violence in order to commit these crimes. Hence, the decree of culpability in this offending is substantially high.
   
9. In view of the seriousness of this crime and, the level of harm and culpability, I select twelve (12) years as the starting point for each count of rape and two (2) years for the offence of Sexual Assault.
   
10. Being the step-father, you held a position of trust. The complainant considered you as a father figure in her family. You breached that trust and confident the complainant had reposed in you. You manipulatively used the vulnerability of her young age to satisfy your lustful sexual gratification. In doing that, you have denied her childhood and natural growth with nature. I consider these reasons as aggravating factors of this offence.
    
11. The learned counsel for the defence submitted in mitigation about your family circumstances. You are 47 years old and married. However, the family background of the offenders of this nature has very minimal mitigatory value.
    
12. You are a first offender. Therefore, it is appropriate to give you some substantial discount for your previous good character. Beside of your previous good character, I do not find any mitigating factor in your favour.
    
13. In view of the above discussed aggravating circumstances, I increased three (3) years to reach interim imprisonment of fifteen (15) years for each count of rape and five (5) years interim imprisonment for the count of Sexual Assault. I reduce one (1) year for your previous unblemished character. Your final sentence has now reached to fourteen (14) years of imprisonment for each count of Rape and four (4) years of imprisonment for the count of Sexual Assault.
    
14. Having considered your age and opportunities for rehabilitation, I find twelve (12) years of non-parole period would serve the purpose of this sentence. Hence, you are not eligible for any parole for a period of twelve (12) years pursuant to Section 18 (1) of the Sentencing and Penalties Act.
    

Head Sentence

15. Accordingly, I sentence you for a period of fourteen (14) years imprisonment for each count of Rape, contrary to Section 207 (1) and (2) (a) of the Crimes Act as charged under second and third counts in the information. Furthermore, I sentence you for a period of four (4) years imprisonment for the offence of Sexual Assault contrary to Section 210 (1) (a) of the Crimes Act as charged under first count in the information.
    
16. All of these sentences to be served concurrently. I further order that you are not eligible for any parole for a period of twelve (12) years.
    

Actual Period of Sentence

17. You have been in remand custody for this case for a period of seven (7) months and six (6) days as you were not granted bail by the court. In pursuant of Section 24 of the Sentencing and Penalties Act, I consider the period of eight (8) months as a period of imprisonment that have already been served by you.
    
18. Accordingly, your actual sentencing period is thirteen (13) years and four (4) months of imprisonment period, with eleven (11) years and four (4) months of non-parole period.
    
19. Since this incident involves with domestic violence, I am satisfied that there are sufficient grounds to consider making an order under the Domestic Violence Act. I accordingly make a permanent domestic violence restraining order against the accused with standard non-molestation conditions and no contact conditions pursuant to sections 24 and 28 of the Domestic Violence Act. The above domestic violence restraining order will be in force until this court or any other competence court is varied or suspended it. Furthermore, if you breached this restraining order, you will be charged and prosecuted for an offence pursuant of section 77 of the Domestic Violence Act.
    
20. Thirty (30) days to appeal to the Fiji Court of Appeal.
    

R.D.R.T. Rajasinghe

Judge

At Suva

01^st November 2017

Solicitors

Office of the Director of Public Prosecutions for the State.

Office of the Legal Aid Commission for the Accused.