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State v Tuinaserau - Sentence [2019] FJHC 226; HAC59.2018 (28 February 2019)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Case No.: HAC 59 of 2018

STATE

V

SITIVENI TUINASERAU

Counsel : Ms. L. Latu for the State.
: Ms. V. Diroiroi for the Accused.

Dates of Hearing : 11 and 12 February, 2019
Closing Speeches : 14 February, 2019
Date of Summing Up : 14 February, 2019
Date of Judgment : 15 February, 2019
Date of Sentence : 28 February, 2019

SENTENCE

(The name of the victim is suppressed she will be referred to as “AB”)

1. In a judgment delivered on 15 February, 2019 this court found the accused guilty and convicted him for one count of rape as per the following information:

ONE COUNT
Statement of Offence

RAPE: Contrary to section 207 (1) and (2) (b) and (3) of the Crimes Act, 2009.

Particulars of Offence

SITIVENI TUINASERAU, between the 1^st day of March, 2018 and the 15^th day of March, 2018 at Maururu, Ba, in the Western Division penetrated the vagina of AB, a child under the age of 13 years, with his finger.

2. The brief facts were as follows:

Between the 1^st day of March, 2018 and 15^th day of March, 2018 the victim “AB” who was 4 years of age was taken by the accused her paternal uncle to a guava patch to pick some guavas.

3. At the guava patch the accused poked the victim’s vagina referred by the victim as her “pipi” with his little finger. The victim was lying down when the accused poked her “pipi”. This resulted in blood coming out of the victim’s vagina. The accused wiped the blood with some mango leaves, when the victim started to cry the accused gave her some guavas.
   
4. The accused told the victim not to tell her mum about what he had done, however, the victim told her mummy about what the accused had done to her.
   
5. The victim’s mother reported the matter to the police, the victim was medically examined and the accused was subsequently charged.
   

6. Both counsel filed written sentence submissions for which the court is grateful.

7. Counsel for the accused presented the following personal details and mitigation on behalf of the accused:

(a) The accused is a first offender;

(b) He was 32 years of age at the time of the offending;

(c) Resides with his elderly parents, is youngest in the family;

(d) Was often neglected by his family members;

(e) Was in a defacto relationship for 3 years;

(f) Has 2 children;

(g) Is a subsistence farmer;

(h) Regrets what he has done, is remorseful;

(i) Had not considered the consequences of his actions on the victim;

(j) Sincerely apologizes for his actions:

(K) Seeks leniency from the court.

8. I accept in accordance with the Supreme Court decision in Anand Abhay Raj v The State, CAV 0003 of 2014 (20 August, 2014) that the personal circumstances of an accused person has little mitigatory value in cases of sexual nature.

9. The aggravating features are:

(a) Breach of trust

The accused is the paternal uncle of the victim. The victim trusted the accused that is why she went with the accused to pick guavas. The accused grossly breached the trust of the victim by his action. The victim was unsuspecting, innocent, vulnerable and helpless. The accused took advantage of this.

(b) Planning

The accused had planned what he did. From the evidence the accused saw the victim playing outside the house with a cousin and he knew the victim’s mother was inside the house. Since the victim was unsupervised he took the unsuspecting victim to the guava patch about 500 meters away from her house.

(c) Age Difference

The victim was 4 years at the time of the offending whereas the accused was 32 years of age. The age difference of 28 years is substantial.

(d) Injuries caused to the victim

According to the medical report of the victim she suffered swollen inflamed introitus that is the entrance of her vagina was swollen and red. The doctor in her evidence stated that upon touch it was very painful to the victim.

10. The maximum penalty for the offence of rape is life imprisonment the Supreme Court of Fiji in the recent judgment of Gordon Aitcheson vs. the State, Criminal Petition No. CAV 0012 of 2018 (2 November, 2018) has confirmed that the new tariff for the rape of a juvenile is now a sentence between 11 years to 20 years imprisonment.

11. After assessing the objective seriousness of the offence committed I take 12 years imprisonment as the starting point of the sentence. I add 7 years for the aggravating factors, arriving at an interim total of 19 years imprisonment. Since the personal circumstances and family background of the accused has little mitigatory value, however, I find his good character has substantive mitigating value. I therefore reduce the sentence by 1 year. Although mentioned in mitigation but clearly there was no remorse expressed by the accused throughout the trial. The interim sentence is now 18 years imprisonment.
    
12. I note from court file that the accused was remanded for 4 months in accordance with section 24 of the Sentencing and Penalties Act I further deduct 4 months as a period of imprisonment already served. The final sentence is 17 years 8 months imprisonment.
    
13. Mr. Tuinaserau you have committed a very serious offence against your niece who was unsuspecting and vulnerable you cannot be forgiven for what you have done to this child. You have not only caused the victim pain and misery you have grossly breached her trust. The victim did not expect such behaviour from you. You should be ashamed of yourself. This court will not tolerate such conduct and will come down hard on offenders like you.
    
14. It is the duty of the court to protect children from sexual exploitation of any kind that is the reason why the law makers have imposed life imprisonment as the maximum penalty for the offence of rape. Your behaviour can best be described as appalling, sickening and shocking. This court denounces the conduct of the accused in the strongest of terms and as a result an immediate long term imprisonment is most warranted.
    
15. There has been an increase in sexual offences involving children where the offenders are known to the victim and are matured adults. It is saddening to note the manner in which the accused had committed this offence. In the victim impact statement the victim has mentioned that she has become fearful and absent minded since the incident and has lost trust on others.
    
16. Having considered section 4 (1) of the Sentencing and Penalties Act and the serious nature of the offence committed on the victim who was 4 years compels me to state that the purpose of this sentence is to punish offenders to an extent and in a manner which was just in all the circumstances of the case and to deter offenders and other persons from committing offences of the same or similar nature.
    
17. Under section 18 (1) of the Sentencing and Penalties Act, I impose 16 years as a non-parole period to be served before the accused is eligible for parole. I consider this non-parole period to be appropriate in the rehabilitation of the accused which is just in the circumstances of this case.
    
18. In summary I pass a sentence of 17 years 8 months imprisonment with a non-parole period of 16 years to be served before the accused is eligible for parole. Due to the closeness of the relationship between the accused and the victim a permanent non-molestation and non-contact orders are issued to protect the victim under the Domestic Violence Act.

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

Sunil Sharma
Judge

Solicitors
Office of the Director of Public Prosecutions for the State.
Office of the Legal Aid Commission for the Accused.