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State v AD - Sentence [2018] FJHC 100; HAC284.2016 (22 February 2018)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 284 of 2016

STATE

v.

AD

Counsel: Ms. K. Semisi for State
Mr. A. Chand, Ms R. Boseiwaqa for Accused

Date of Hearing: 20^th February 2018
Date of Summing Up: 21^st February 2018
Date of Judgment: 21^st February 2018
Date of Sentence: 22^nd February 2018

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SENTENCE

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1. The names of the Complainant and the Accused are suppressed.
   
2. The Accused is found guilty and convicted for one count of Rape, contrary to Section 207 (1), (2) (b) of the Crimes Act, which carries a maximum sentence of life imprisonment, and one count of Sexual Assault, contrary to Section 210 (1) (a), which carries a maximum sentence of ten years imprisonment.
   
3. It was proved at the conclusion of the hearing that you entered into the room of the Complainant, while she was lying on the bed. You were alone with the Complainant as her father left to work leaving both of you at home. You then forcefully pushed her down to the bed, when she tried to get up and push you way. You then started to suck her breast. After that, you sucked inside of her vagina. You came to the house as a friend of the Complainant’s father.
   
4. This is a case of sexually exploitation of a young adolescent by a known person within her own domestic environment. She is the daughter of your friend, who trusted you by inviting you to sleep at their place. Your friend had trust in you to leave his daughter with you at home. The Complainant had considered you as an uncle and a friend of her father.
   
5. Sexual exploitation of children within their own domestic environment has become a social menace in this country, which requires a more constructive and affective intervention of the law enforcement authorities, including the Court of Law in order to protect the children from this monsters phenomenon. Therefore, I find this offending is a very serious crime.
   
6. In view of the seriousness of this offence, it is my opinion that such offenders must be dealt with severe and harsh punishment. Hence, the purpose of this sentence is founded on the principle of deterrence and protection of community. Moreover, the court must demonstrate in sentencing that the offenders of this nature are socially abhorrent.
   
7. Hon. Chief Justice Gates in Anand Abhay Raj [2014] FJSC 12; CAV0003.2014 (20 August 2014) held that the tariff for rape of a child is between 10 -16 years’ imprisonment period.
   
8. 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)”

9. The victim was fifteen years old at that time. The evidence reveals that her parents were separated. She had been living with her mother who had passed away before this incident. Just before this incident took place, she came to live with her father. It is certain that a crime of this nature adversely affects a child of this age with such a family background. Hence, I find the level of harm is substantially high in this crime.
   
10. You have committed this disgraceful sexual exploitation on the Complainant when she was not in a position to find a way to escape. You found that she was alone in the bedroom and used that opportunity to satisfy your disgraceful sexual gratification. The Complainant in her evidence said that she wanted to get her mobile phone and call her father. You threw it away. You then forcefully covered her mouth from your hand. Hence, it is clear, that you found an opportunity, where the Complainant was vulnerable without any prospects of escaping, in order to satisfy your sexual gratification. You have used certain amount of force in order to commit this crime. I accordingly find the decree of culpability in this offending is substantially high.
    
11. 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 the offence of Rape and two years for the offence of Sexual Assault.
    
12. You have blatantly breached the trust reposed in you by the Complainant and her father. The age difference between you and the Complainant was substantially high at the time of this crime took place. You were fifty years old and she was just fifteen years old at that time. I consider these factors as aggravating circumstances of this crime.
    
13. 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.
    
14. In view of the above discussed aggravating circumstances, I increased three (3) years to reach interim imprisonment of fifteen (15) years for rape and five (5) years for the Sexual Assault. I reduce one (1) year for your previous unblemished character. Your final sentence for the rape has now reached to fourteen (14) years of imprisonment. The final sentence for the sexual assault has reached to four (4) years of imprisonment.
    
15. Having considered the seriousness of this crime, the purpose of this sentence, 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

16. Accordingly, I sentence you for a period of fourteen (14) years imprisonment for the offence of Rape, contrary to Section 207 (1) and (2) (b) of the Crimes Act and for a period of four (4) years imprisonment for the offence of Sexual Assault contrary to Section 210 (1) (a) of the Crimes Act. Both sentence to be served concurrently. Further, I order that 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.
    

Actual Period of The Sentence

17. You have been in remand custody for this case for a period of one (1) year and eight (8) months 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 one (1) year and eight (8) months as a period of imprisonment that have already been served by you.
    
18. Accordingly, the actual sentencing period is twelve (12) years and four (4) months imprisonment with non-parole period of ten (10) years and four (4) months.
    
19. Thirty (30) days to appeal to the Fiji Court of Appeal.
    

R.D.R.T. Rajasinghe

Judge

At Suva

22^nd February 2018

Solicitors

Office of the Director of Public Prosecutions for the State.

Office of the Legal Aid Commission for the Accused.