High Court of Fiji

"The increasing prevalence of these crimes, crimes characterised by disturbing aggravatircumss, means the Cour Court must consider widening the tariff for Rape against children. It wilt will be for judges to exercise their discretion taking into account the age group of these child victims. I do not for myself believe that that judicial discretion should be shackled. But it is obvious to state that crimes like these on the youngest children are the most abhorrent.”

Purpose of the Sentence

6. In view of the severe nature and prevalence of the crimes of this nature, the primary purpose of this sentence is founded on the principle of deterrence. It is the responsibility of the Court to deter offenders or other persons from committing offences of the same or similar nature and protect the community from offenders of this nature. A harsh and long custodial sentence is inevitable for the offences of this nature to demonstrate the gravity of the offence and reflect that civilized society denounces such crimes without any reservation.
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7. These two counts of Rape are founded on the same series of offending of same and similar characters. Tore, I find it is appropriaopriate to impose an aggregate sentence pursuant to Section 17 of the Sentencing and Penalties Act.
   

Tariff

8. Gates CJ in Aitche State (Supra) held the tariff for the Rape Rape of a child is between 11 - 20 years' imprisonment period.
   
Rapa physical invasion of a se a sexual nature committed on the victim under a coercive circumstance. (vide The Prosecutor V Jean-Paul Akayesu Case No ICTR-96-4-T). Hence, the offence of Rape is an invasion of the bodily integrity and the sexual autonomy of the victim. It infringes personal liberty and rights to have a private life of the victim. Therefore, the degree of invasion of the bodily integrity and sexual autonomy of the victim is an indispensable factor in determining the gravity and impact of the crime on the victim.
tyle='text-indenindent:0pt; margin-top:0pt; margin-bottom:0pt;' value='10' value="10">The victim impact report states that this crime has adversely affected the complainant emotionally and psychologically. Her lifestyle, both personal and social, has changed adversely after this incident. According to the Victim Impact Report, this crime has shattered her self-confidence, thus making her scared and self-blame person. Therefore, I find that the level of harm in this offence is significantly high.
style='text-indenindent:0pt; margin-top:0pt; margin-bottom:0pt;' value='11' value="11">You had meticulously planned and executed this crime. You have lured the Complainant to you by giving her money to buy chewing gum. You had tried to conceal this crime by telling the young complainant not to tell anyone about this crime. I accordingly find that the level of culpability is significantly high in this crime.
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12. Having considered the seriousness of the crime, the purpose of the sentence, the level of culpabilnd harm, it is my opinion tion that this is a suitable case where the Court should select the starting point at the mid-range of the tariff. Hence, I select fourteen (14) years as the starting point.
    
13. The Complainant is your niece. You are an elderly relative of the Complainant. Instead of caring and looking after this small young Complainant, you manipulatively used her naivety in childhood to satisfy your lustful sexual gratification. The age difference between you and the Complainant is substantially high. She was eight (08) years old, and you were seventy (70) years old when this offence took place. By committing this crime, you have exposed this eight years old child to sexual activities at a very young age, thus preventing her from having a natural growth of maturity in her life. I consider these grounds as aggravating factors in this offending.
    
14. The learned Counsel for the Defence, in her mitigation submissions, submitted your personal and family background, which I find no mitigatory value.
    
15. The learned Counsel for the Defence submitted that you are a first offender; hence, you are entitled to a substantive discount. I find that your previous good character, especially the fact that you have not been tainted with any previous conviction for an offence of sexual nature, would have definitely allowed you to freely move around in the community without any suspicion of risk. The community had perceived you as a man of good character and not as a child pedophile and allowed you to be feely moved in the community. Moreover, there is no suggestion that you have significantly contributed to the community or have any reputation in the community. Therefore, I do not find your previous good character has any significant mitigatory value. Hence, you are only entitled to a meager discount for your previous good character.
    
You pleaded guilty to this matter before the commencement of the hearTherefore, you are entitled to a discount for your plea of a of guilty.

17. In view of the reasons discussed above, I increase four (4) years for the aggravating factors to reach an interim period of eighteen (18) years. Because of your previous good character, I give you one (1) year discount. I reduce further two (02) years for the plea of guilty and reach fifteen (15) years imprisonment as your final sentence.
18. Having considered the seriousnesthis crime, the purpose of this sentence, and opportunities for rehabilitation, I find thir thirteen (13) years of the non-parole period would serve the purpose of this sentence. Hence, you are not eligible for any parole for thirteen (13) years pursuant to Section 18 (1) of the Sentencing and Penalties Act.
    

Head Sentence