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

Criminal Case No. HAC 40 of 2018

BETWEEN:		THE STATE

AND:			ILAITIA VUSOLO

Counsel:	Ms A Vavadakua for the State
		Ms K Boseiwaqa (Duty Solicitor) for the Accused

Date of Hearing:	22 June 2018
Date of Sentence:	25 June 2018

SENTENCE

[1]	Ilaitia Vusolo, you have freely and voluntarily pleaded guilty to a charge of rape after 	consulting duty solicitor from the Legal Aid Commission. Your plea is informed and 	competent. You are convicted as charged.

[2]	The facts you admitted are as follows:

		Between  the 1st of  November 2016 and  the 30th day of November 		2016, A.S, whose mother is the sister of the Accused person’s  wife, 		was  spending  her  school holidays with her cousin, M the Accused 		person’s step-daughter, at the Accused person’s residence in Bua.

		During  the  above  time   period,  on  one  afternoon,  the  Accused 		confronted A.S in the kitchen and questioned her on whether she had 		a boyfriend or not and then he walked away.

		Later in the evening after they had dinner, A.S and her cousin sister 		went to bed and were asleep when the Accused started waking A.S 		up.  When  he  went  to  wake  A.S, M, the  step-daughter, was  also 		aware that the Accused had awoken her cousin sister. The Accused 		then  told  A.S  that  he  was  going  to check  her  virginity.  A.S  was 		horrified  when   her  uncle,  the  Accused  told  her  to  remove  her	 	underwear to do this.

		A.S  was  afraid  of  the accused  because  she was  in  his home, and 		this  was happening in the middle of the night, in addition it was the 		first time such 	an act was done to her, so out of fear for the Accused, 		as a  person  in  authority over  her  that  night, she  submitted. The 		Accused did not request to check her, he  told  her  he  was  going  to 		check  her  and told her  to  lie down.  He was reckless as to whether 		she was consenting or not.

		A.S was scared of the Accused because he was her uncle and she was 		living 	in  his  house  at  that  time  since  it  was  during  the  school 		holidays.  Out  of  fear  of  his  authority  over  her, as her  uncle  she 		submitted.

		Accused then told her to remove her underwear. She obeyed out of 		fear for the Accused.

		As A.S lay down, the Accused  then  switched on his Toshiba torch 		and  he  penetrated  the  vagina  of A.S  with his finger, without her 		consent.

		A.S  never  told  anyone when  she  returned  to her  home  because  		she did not  know  how  to talk about it and she was too embarrassed 		to even share with her own family. Additionally, she was fearful of 		the Accused since  he  was  a very close family member  and  they  		would 	occasionally visit each other’s families.				

[3]	In mitigation, your counsel informed the Court that you are 32 years old and married 	with five children.  Your children are between the age of four and twelve. Your wife 	is expecting your sixth child. Your family is depended on you for their livelihood.  	You earn a living by farming.  You are a first time offender.

[4]	I consider the following as mitigating factors:

(i)	Early guilty plea and expression of genuine remorse which is consistent with your confession to the police.

(ii)	Your previous good character.

[5]	The consequences of your offending on your family have little mitigating value.  You 	should  have  thought  of  your  wife  and  children  before  molesting  a young girl 	who was your relative and under your care. However, the Court recommends the 	Department of Social Welfare to attend to the welfare of your children while you are 	in prison.

[6]	The aggravating factors are:

(i)	Breach of trust. The victim was a child (16 years old) and your niece. You molested her when she came to spend her school holidays at your home.

(ii)	The victim felt embarrassed after you sexually abused her.  She did not speak to anyone about the incident because you were an older male relative and she feared you.

[7]	The maximum penalty for rape is life imprisonment. The tariff for child rape is 10-  	16 years imprisonment (Raj v State [2014] FJSC 12; CAV0003.2014 (20 August 	2014)).The purpose of punishment for rape is to denounce the conduct and deter 	others.

[8]	Rape of a child is one of the most serious forms of sexual abuse. Children are 	vulnerable members 	of our society. They are entitled to live their lives free from 	any form of physical or emotional abuse. They are entitled to trust their family 	members to protect them and 	keep them safe from any form of abuse. When family 	members sexually abuse children, they should expect condign punishment to mark 	the society’s outrage against sexual abuse of children.  

[9]	If it was not for your early guilty plea, genuine expression of remorse and previous 	good character, I would have imposed a sentence of 13 years imprisonment. But for 	these compelling mitigating factors, I give you a discount of three years.  You have 	not only saved court time and resources, you have relieved the child victim from 	giving evidence of a traumatic incident in her life by pleading guilty.

[10]	Finally, I have taken into account your remand period of 1 month and 2 weeks in 		determining the final term of your imprisonment.

[11]	You are sentenced to 10 years’ imprisonment with a non-parole of 7 years.

[12]	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 Legal Aid Commission for the Accused