IN THE HIGH COURT OF FIJI
AT LABASA
[CRIMINAL JURISDICTION]

CRIMINAL CASE NO. HAC 27 OF 2018

BETWEEN:		THE STATE

AND:			JOTAME CIRI

Counsel:	Ms A Vavadakua for the State
		Ms K Boseiwaqa for the Accused 

Date of Hearing:	21 June 2018
Date of Sentence:	22 June 2018

SENTENCE

[1]	Jotame Ciri, you have freely and voluntarily pleaded guilty to two counts of rape at 	the first available opportunity. When the State presented the facts, you admitted 	having sexual intercourse with the child victim, but you disputed using force during 	the incidents. The victim is 12 years old. She was born on 25 July 2005. She did not 	have the legal capacity to give consent to sexual penetration. Consent or lack of it by 	a victim under the age of 13 years is irrelevant when determining the guilt of an 	accused. A person who sexually penetrates a child under the age of 13 years is guilty 	of rape regardless of whether the child victim had consented or not consented to sex. 	The use of force in cases of rape of a child under the age of 13 years is an aggravating 	factor relevant in sentencing and not in determination of the guilt of an accused. For 	these reasons, the Court is satisfied that your guilty pleas to the two counts of rape are 	informed, competent and valid. You are convicted as charged.

[2]	A Newton hearing was held to determine the disputed facts regarding the use of force 	during the two incidents of rape. The victim was called to give evidence. You 	elected to remain silent. 

[3]	The victim is your niece – cousin sister’s daughter. At the material time you were 	also her guardian. After her parents had separated her maternal grandparents became 	her guardian. She was raped by her grandfather when she was under his care. He was 	convicted and imprisoned in a separate case. After the grandfather was imprisoned, 	you became her guardian and she moved in to reside with you at Nawailevu, Bua. 

[4]	The first incident occurred on the evening of 25 February 2018. The victim was at 	home doing her homework when you approached her in a bath towel wrapped around 	your waist. In her evidence, the victim said that you removed her clothes, covered her 	mouth with your hand and had sexual intercourse with her. The second incident 	occurred on the night of 5 March 2018. You had returned home drunk. In her 	evidence, the victim said that you carried her into the kitchen from the bedroom, 	undressed her and tied her hands with a singlet. When she screamed, you gagged her 	mouth with your trousers and had sexual intercourse with her. She was so afraid of 	you that she decided 	not to return to your 	home when she came to know that you 	were looking for her when she was attending a village function on 18 March 2018.  I 	accept the victim’s evidence that force was used during the two incidents of rape. She 	struck me as an honest and reliable witness. 

[5]	On 19 March 2018, you were interviewed under caution. You admitted to sexual 	intercourse but said it was consensual. 

[6]	You are 46 years old. At the time of the offending, you were separated from your 	wife. You have two children from that marriage. The children were left with you after 	your wife left you. The children are now 14 years and 15 years old, respectively. They 	are in high school and are being looked after by your elderly mother.  Your counsel 	has placed a great deal of emphasis on your family circumstances as a mitigating 	factor. The consequences of your crime on your family have little mitigating value. 	You should have thought of your elderly mother and children before sexually abusing 	a young girl who was under your care. 

[7]	Although you do not have a previous conviction for sexual offence, you have 10 	previous convictions for assault and criminal intimidation between 2003 and 2012. 	You are not a first time offender. Little weight can be attached to your previous good 	character as a mitigating factor.

[8]	In rape cases, significant weight can be attached to a guilty plea, if it is a genuine 	expression of remorse. In your case, while you admitted sexual intercourse with the 	victim, you denied using force. In your address to the court, you claimed that you 	were seduced by the child victim to have sex with her. You claimed that she even 	proposed to marry you after she had completed her high school.  The victim was not 	relieved from giving evidence. She had to give evidence and recollect the vile 	moments when you raped her. Under cross-examination she was made to feel she was 	lying about the force used by you when you raped her.  

[9]	While you have pleaded guilty to rape, there is little evidence to show that you are 	genuinely remorseful for your conduct. The Court had an opportunity to see the 	victim when she gave evidence. Not only is she of a tender age she is of a very small 	physique. Your claim that you were seduced by the child victim to have sex is 	fanciful. Apart from your early guilty plea, there are no other mitigating factors. For 	your early guilty plea, I give you a discount of 2 years. 

[10]	As a separate consideration, a downward adjustment is made in sentence to reflect 	your remand period of 3 months 1 week and 4 days. 

[11]	The victim was a vulnerable person due to her age and her personal circumstances. 	She was abandoned by her parents when they got separated. She was raped by her 	grandfather when she was under his care. You knew about her circumstances. You 	were entrusted with her when her grandfather was jailed. Instead of protecting her, 	you treated her as an object of your lust. The second incident had sadistic features – 	tying the victim’s hands, gagging her mouth with cloth and 	sexually penetrating her. 	You exploited her vulnerability and ruined her innocence. You raped her not once, but 	twice. You grossly breached the victim’s trust who was your niece. She had to be re-	allocated to live with another family. These are some compelling aggravating 	features. 

[12]	The seriousness of rape is reflected in its maximum penalty.  The maximum penalty is 	life imprisonment. The tariff for rape of a child is 10-16 years’ imprisonment (Raj v 	State [2014] FJSC 12; CAV0003.2014 (20 August 2014)). 

[13]	Time and again the courts have warned public that sexual violence on children will 	not be condoned.  The courts have a duty to protect children from any form of sexual 	violence. Children have a right to live their lives with dignity, free from abuse or 	violence. Children who are raped by their family members should expect condign 	punishment to mark the society’s outrage against such offences. 

[14]	Bearing all these factors into account, I sentence you to 12 years’ imprisonment on 	each count of rape, to be served concurrently. You are not eligible for parole until you 	have served 10 years. Since you had custody of your two children after your wife had 	left you, I recommend the Department of Social Welfare to attend to your children’s 	welfare until they turn 18 years of age. 

[15]	The offence you committed constitutes domestic violence under the Domestic 	Violence Act.  You are issued with a permanent Domestic Violence Restraining Order 	(DVRO) with standard no contact and no molestation conditions.  The DVRO is 	necessary to protect the victim in future from you. The DVRO will remain active until 	you are living. If you breach the DVRO, you may be charged with the offence of 	breaching a DVRO.

							 …………………………….. …….
							Hon. Mr Justice Daniel Goundar
Solicitors:
Office of the Director of Public Prosecutions for the State
Office of the Legal Aid Commission for the Accused