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State v Nakauyaca - Sentence [2020] FJHC 932; HAC283.2019 (11 November 2020)

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

CRIMINAL CASE NO: HAC 283 of 2019

STATE

V

SEVANAIA NAKAUYACA

Counsel : Ms. Shirley Tivao for the State
Ms. Litiana Ratidara for the Accused

Sentence Hearing : 15 October 2020

Sentence : 11 November 2020

The name of the complainant is suppressed. Accordingly, the complainant will be referred to as “IW”.

SENTENCE

[1] Sevanaia Nakauyaca, as per the Information filed by the Director of Public Prosecutions (DPP), you were charged, with the following offences:

COUNT ONE
Representative Count

Statement of Offence

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

Particulars of Offence

SEVANAIA NAKAUYACA, between the 1^st of May 2018 to the 31^st of December 2018, at Waibasaga Settlement, in the Eastern Division, penetrated the vulva of IW, a child under the age of 13 years, with his finger.

COUNT TWO

Statement of Offence

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

Particulars of Offence

SEVANAIA NAKAUYACA, between the 1^st of May 2018 to the 31^st of December 2018, at Waibasaga Settlement, in the Eastern Division, on an occasion other than Count 1, penetrated the vulva of IW, a child under the age of 13 years, with his finger.

COUNT THREE

Statement of Offence

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

Particulars of Offence

SEVANAIA NAKAUYACA, on the 22^nd of July 2019, at Waibasaga Settlement, in the Eastern Division, penetrated the vulva of IW, a child under the age of 13 years, with his finger.

COUNT FOUR

Statement of Offence

INDECENT ASSAULT: Contrary to Section 212 of the Crimes Act 2009.

Particulars of Offence

SEVANAIA NAKAUYACA, on the 22^nd of July 2019, at Waibasaga Settlement, in the Eastern Division, unlawfully and indecently assaulted IW, by kissing the lips of IW.

[2] This matter was first called before the High Court on 14 August 2019. On 20 September 2019, the DPP filed the Information and Disclosures relevant to the case and the matter was adjourned for plea. When the plea was first taken, on 11 October 2019, you pleaded not guilty to the four charges.

[3] After the conclusion of all pre-trial issues this matter was set for trial from 5-16 October 2020.

[4] The State was relying on the caution interview statement made by you at the Vunidawa Police Station, from 2- 4 August 2019. Since you were challenging the admissibility of the said caution interview statement, a voir dire inquiry was held from 6-8 October 2020. On 9 October 2020, this Court ruled that the caution interview statement made by you is admissible in evidence.

[5] On 12 October 2020, you informed Court, through your Counsel that you wish to take a progressive approach in this matter. Accordingly, on the said day, the charges were read to you again and you pleaded guilty to the three counts of Rape and one count of Indecent Assault in the Information. This Court was satisfied that you pleaded guilty on your own free will and free from any influence. Court found that you fully understood the nature of the charges against you and the consequences of your plea.

[6] On the same day, the Summary of Facts were filed in Court and were read out and explained to you. You said you understood and agreed to the same. Accordingly, Court found your guilty plea to be unequivocal. I found that the facts support all elements of the three counts of Rape and one count of Indecent Assault in the Information, and found the said counts proved on the Summary of Facts agreed by you. Accordingly, I found you guilty on your own plea and I convicted you on the three counts of Rape and one count of Indecent Assault as charged.

[7] I now proceed to pass sentence on you.

[8] The Summary of Facts filed by the State was as follows:

“Background

1. The Complainant is IW (PW1) (born on the 11 March 2007), Student of Soloira District School.
2. The Accused: Sevanaia Nakauyaca, 71 years old, retired Waibasaga Settlement, Naitasiri.
3. The accused is related to PW1, he is PW1’s grand- uncle. In 2018 – 2019 they resided in Waibasaga Settlement, Naitasiri, in different houses.

Incident

COUNT 1

1. Between the 1 May 2018 and 31 December 2018, PW1 recalls that when she was making her way home from school the accused would call her to come to the cassava patch, this would be at around 4.30pm – 5.30pm.
2. At the cassava patch when the accused was alone with PW1 he would lift her school uniform, pull her panties down to her thighs, push her thighs apart and insert his pointing finger, forcefully into her vagina. After he inserted his finger into her vagina he would move his finger around. PW1 recalls that this was painful.
3. PW1 states that the above happened on many occasion between the 1 May 2018 and 31 December 2018.
4. After the above the accused world give PW1 either a packet of chow noodles or money.

COUNT 2

5. On a separate occasion between 1 May 2018 and 31 December 2018, PW1 was peeling cassava at home when the accused called her to come into his house. PW1 listened and went to the accused house.
6. Whilst they were inside of the house the accused took off PW1’s panty and inserted his finger inside her vagina. PW1 recalls that this was painful.
   7. In 2018, PW1 was 11 years old.
      

COUNT 3 AND COUNT 4

8. On the 22 July 2019, when PW1 was on her way home with other students she notice the accused standing in the cassava patch calling her, he then told her to wait.
9. PW1 waited while the other students left. The accused then came to PW1, pulled her panty down, pushed her thighs apart while she was still standing and inserted his right pointing finger into her vagina.
10. After the accused had inserted his finger in PW1’s vagina he started to move his finger around. PW1 states that this was painful.
11. Whilst the accused was doing the above he started unlawfully kissing and sucking PW1’s lips.
12. After the accused was done he took his finger out of PW1’s vagina and gave her 2 50c coins and a packet of chow noodles.
    13. Further the accused threatened PW1 not to yell or he would smack her.
14. On the 24^th July 2019, PW1 went to school and during recess told her aunt what the accused had done to her.
    15. The matter was then reported to police and an investigation took place.
    16. The vagina is part of the vulva.
    17. In 2019 PW1 was 12 years old.
        

Caution Interview

18. The accused was cautioned interview from the 2 – 4 August 2019 where he has admitted to the following;
    1. On the 22 July 2019 he called PW1 and met her at the cassava patch, where he then inserted his finger in her vagina and kissed her [Question and Answer 39 – 54]
    2. He agreed that he started doing the above to her from 2018 [Question and Answer 56]
    3. The accused further admits to inserting his finger in PW1’s vagina at the cassava patch and inside the house [Question and Answer 61 – 64]
    4. Further he agrees that this happened on many occasions [Question and Answer 66]
19. Attached as Tab 1 is a copy of the I Taukei Caution Interview and Tab 2 is a copy of the English translated Caution Interview.”

[9] Sevanaia, you have admitted to the above Summary of Facts and taken full responsibility for your actions.

[10] You are the complainant’s grand-uncle. The complainant’s date of birth is 11 March 2007. Therefore, at the time you committed these offences on her, the complainant was between 11-12 years of age and, as such, a juvenile.

[11] The Victim Impact Statement of the complainant has been filed in Court. Therein, it is recorded that the complainant has been emotionally and psychologically traumatized by your actions.

[12] In the Victim Impact Statement the complainant has said as follows:

“To grandfather Seva,

I never dreamt that you would do these despicable things to me.

You were supposed to protect me and keep me safe.

You have made me lose all my trust in you.

You have totally changed my childhood.

I don’t want to see your face again.

I hope that you will be punished for this so that you won’t do this to any other child.”

[13] Section 4(1) of the Sentencing and Penalties Act No. 42 of 2009 (“Sentencing and Penalties Act”) stipulates the relevant factors that a Court should take into account during the sentencing process. The factors are as follows:

4. — (1) The only purposes for which sentencing may be imposed by a court are —

(a) to punish offenders to an extent and in a manner which is just in all the circumstances;

(b) to protect the community from offenders;

(c) to deter offenders or other persons from committing offences of the same or similar nature;

(d) to establish conditions so that rehabilitation of offenders may be promoted or facilitated;

(e) to signify that the court and the community denounce the commission of such offences; or

(f) any combination of these purposes.

[14] I have duly considered the above factors in determining the sentence to be imposed on you.

[15] The offence of Rape in terms of Section 207(1) of the Crimes Act carries a maximum penalty of imprisonment for life.

[16] The severity of the offence of Rape was highlighted by the Fiji Court of Appeal in the case of Mohammed Kasim v. The State [1994] FJCA 25; AAU 21 of 93 (27 May 1994); where it was stated:

“....It must be recognized by the Courts that the crime of rape has become altogether too frequent and that the sentences imposed by the Courts for that crime must more nearly reflect the understandable public outrage.”

[17] In the case of State v. Marawa [2004] FJHC 338; HAC 16T of 2003S (23 April 2004); His Lordship Justice Anthony Gates stated:

“Parliament has prescribed the sentence of life imprisonment for rape. Rape is the most serious sexual offence. The Courts have reflected increasing public intolerance for this crime by hardening their hearts to offenders and meting out harsher sentences”.

“A long custodial sentence is inevitable. This is to mark the gravity of the offence as felt, and correctly so, by the community. Imprisonment emphasizes the public’s disapproval and serves as a warning to others who may hitherto regard such acts lightly. One must not ignore the validity of the imposition of condign punishment for serious crime. Lastly the sentence is set in order to protect women from such crimes: Roberts and Roberts (1982) 4 Cr. App R(S) 8; The State v Lasaro Turagabeci and Others (unreported) Suva High Court Crim. Case No. HAC0008.1996S.”

[18] In The State v Lasaro Turagabeci and Others (supra) Pain J had said:

“The Courts have made it clear that rapists will be dealt with severely. Rape is generally regarded as one of the gravest sexual offences. It violates and degrades a fellow human being. The physical and emotional consequences to the victim are likely to be severe. The Courts must protect women from such degradation and trauma. The increasing prevalence of such offending in the community calls for deterrent sentences.”

[19] His Lordship Justice Daniel Goundar, in the case of State v. AV [2009] FJHC 24; HAC 192 of 2008 (2 February 2009); observed:

“....Rape is the most serious form of sexual assault. In this case a child was raped. Society cannot condone any form of sexual assaults on children. Children are our future. The Courts have a positive obligation under the Constitution to protect the vulnerable from any form of violence or sexual abuse. Sexual offenders must be deterred from committing this kind of offences”.

[20] In the case of State v. Tauvoli [2011] FJHC 216; HAC 27 of 2011 (18 April 2011); His Lordship Justice Paul Madigan stated:

“Rape of children is a very serious offence indeed and it seems to be very prevalent in Fiji at the time. The legislation has dictated harsh penalties and the Courts are imposing those penalties in order to reflect society's abhorrence for such crimes. Our nation's children must be protected and they must be allowed to develop to sexual maturity unmolested. Psychologists tell us that the effect of sexual abuse on children in their later development is profound.”

[21] In the case of Felix Ram v. The State [2015] FJSC 26; CAV 12 of 2015 (23 October 2015); His Lordship Chief Justice Anthony Gates laid down the following factors that a Court should take into account when sentencing an offender who has been convicted of Rape:

“(a) whether the crime had been planned, or whether it was incidental or opportunistic;

(b) whether there had been a breach of trust;

(c) whether committed alone;

(d) whether alcohol or drugs had been used to condition the victim;

(e) whether the victim was disabled, mentally or physically, or was specially vulnerable as a child;

(f) whether the impact on the victim had been severe, traumatic, or continuing;

(g) whether actual violence had been inflicted;

(h) whether injuries or pain had been caused and if so how serious, and were they potentially capable of giving rise to STD infections;

(i) whether the method of penetration was dangerous or especially abhorrent;

(j) whether there had been a forced entry to a residence where the victim was present;

(k) whether the incident was sustained over a long period such as several hours;

(l) whether the incident had been especially degrading or humiliating;

(m) If a plea of guilty was tendered, how early had it been given. No discount for plea after victim had to go into the witness box and be cross-examined. Little discount, if at start of trial;

(n) Time spent in custody on remand;

(o) Extent of remorse and an evaluation of its genuineness;

(p) If other counts or if serving another sentence, totality of appropriate sentence.”

[22] His Lordship Justice Goundar in State v Apisai Takalaibau – Sentence [2018] FJHC 505; HAC 154 of 2018 (15 June 2018); making reference to statistics of Aggravated Burglary cases filed in the High Court in 2017 and 2018, stated that “A factor that influences sentencing is the prevalence of the offence in the community........The more prevalent is an offence, the greater the need is for deterrence and protection of the community.”

[23] This has also been affirmed by the Supreme Court in Alfaaz v. State [2018] FJSC 17; CAV0009.2018 (30 August 2018); where it was recognized that the prevalence of cases of child rape calls for harsher punishments to be imposed by Courts. Their Lordships held:
“According to the statistics released by the Director of Public Prosecutions Office it appears that a number of rape victims as well as victims under the age of 18 years and victims in domestic relationships or relatives were also victims of other serious sexual offences. The rape of children is a very serious offence and it is very frequent and prevalent in Fiji. The courts must impose harsh penalties dictated by the legislation. The courts should not leniently look at this kind of serious cases of rape of children of tender years when punishing the offenders.”

[24] Similarly, in her Sentencing Submissions the Learned State Counsel has submitted to Court the statistics prepared by the Office of the DPP depicting the number of Rape and Sexual Abuse cases of juveniles, for the period January to September 2020.

[25] In the case of Anand Abhay Raj v. The State [2014] FJSC 12; CAV 0003 of 2014 (20 August 2014); Chief Justice Gates (with Justice Sathyaa Hettige and Madam Justice Chandra Ekanayake agreeing) endorsed the view that Rapes of juveniles (under the age of 18 years) must attract a sentence of at least 10 years and the acceptable range of sentences or sentencing tariff is between 10 and 16 years imprisonment.

[26] However, in the case of Aitcheson v State [2018] FJSC 29; CAV0012 of 2018 (2 November 2018); His Lordship Chief Justice Gates stated that the sentencing tariff for the Rape of a juvenile should now be increased to between 11 and 20 years imprisonment. His Lordship held:

“The tariff previously set in Raj v The State [2014] FJSC 12 CAV0003.2014 (20^th August 2014) should now be between 11-20 years imprisonment. Much will depend upon the aggravating and mitigating circumstances, considerations of remorse, early pleas, and finally time spent on remand awaiting trial for the final sentence outcome. The increased tariff represents the denunciation of the courts in the strongest terms.”

[27] In Aitcheson v State (Supra), it was said:

[72] Undoubtedly it has been accepted by the society that rape is the most serious sexual offence that could be committed on a woman. Further it is said that; “A murderer destroys the physical body of his victim; a rapist degrades the very soul of a helpless female.”

[28] In determining the starting point within the said tariff, the Court of Appeal, in Laisiasa Koroivuki v. State [2013] FJCA 15; AAU 0018 of 2010 (5 March 2013); has formulated the following guiding principles:

“In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this time. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff. If the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range.”

[29] In the light of the above guiding principles, and taking into consideration the objective seriousness of the offence, I commence your sentences at 11 years imprisonment for the first, second and third counts of Rape.

[30] The aggravating factors are as follows:

(i) You were the complainant’s granduncle and reside in the same settlement as the complainant. The complainant considered you as grandfather. As such, you should have protected and safeguarded the complainant. Instead you breached the trust expected from you and the breach was gross.

(ii) There was a large disparity in age between you and the complainant. At the time of the incidents the complainant was between 11-12 years of age. At the time you were between 69-70 years of age. Therefore, you were 58 years older than the complainant at the time of the offending and wielded a position of power and authority over the complainant.

(iii) You took advantage of the complainant’s vulnerability, helplessness and naivety and thereby paid no regard to her personal security or privacy.

(iv) You have exposed the innocent mind of a child to sexual activity at such a tender age, and thereby robbed the complainant of her innocence.

(v) There was a significant degree of planning involved on your part in committing these offences. On multiple occasions you would wait for the complainant to make her way back home from school and then call her to the cassava patch where you perpetrated the offences on her.

(vi) The impact of the crime on the complainant was traumatic. The complainant has been emotionally and psychologically traumatized by your actions.

(vii) You are now convicted of multiple offending. Furthermore, the first count is a representative count. The State submits that the complainant had to endure your acts of abuse over a prolonged period of 8 months (from May to December 2018).

[31] In mitigation you have submitted as follows:

(i) You are a person of recent good character. Even the State confirms the fact that you have not offended the law since the year 1978 (prior to committing the acts that you are now charged with).

(ii) You have submitted that you are truly remorseful of your actions and that you are seeking forgiveness from the complainant and from this Court.

(iii) That you entered a guilty plea prior to the trial proper.

[32] Sevanaia, you are now 71 years of age (Your date of birth being 2 August 1949). You are said to be married but have no children. You are said to be living with your wife at the Waibasaga Settlement, Serea, Naitasiri. You are said to have studied up to Class 2 at Solo-i-Ra District School, Serea, Naitasiri. You had dropped out of school and was employed as a farmer. However, in my opinion, these are all personal circumstances and cannot be considered as mitigating factors.

[33] Furthermore, a testimony has been provided to this Court on your behalf by Ratu Manoa Roragaca, who is the Chief of your village. He has stated that you are a village elder. You usually assist in carrying out the duties of the land, church and government. Most of the time you have been encouraging the people to carry out the duties as required by the Chief. This confirms your recent good character.

[34] Sevanaia, considering the aforementioned aggravating factors, I increase your sentences by a further 7 years. Now your sentences for the first, second and third counts of Rape would be 18 years’ imprisonment.

[35] I accept that you are a person of recent good character. I also accept your remorse as genuine. Accordingly, considering the above mitigating factors, I deduct 2 years from your sentences. Now your sentences for the first, second and third counts of Rape would be 16 years’ imprisonment.

[36] You entered a guilty plea just prior to the trial proper. However, in doing so you saved some of the resources of this Court, instead of proceeding with the matter for trial. More importantly, you saved the complainant from having to give evidence and thereby re-live the incidents all over again. For your guilty plea I grant you a further discount of 2 years. Now your sentences for the first, second and third counts of Rape would be 14 years’ imprisonment.

[37] Sevanaia you have been convicted of one count of Indecent Assault contrary to Section 212 of the Crimes Act (Count 4).

[38] The offence of Indecent Assault in terms of Section 212 of the Crimes Act carries a maximum penalty of 5 years imprisonment.

[39] Her Ladyship Madam Justice Shameem in Ratu Penioni Rokota v. State [2002] FJHC 168; HAA 68J of 2002S (23 August 2002); held that the applicable tariff for the offence of Indecent Assault range from 12 months to 4 years imprisonment. Madam Justice Shameem said:

“..... Sentences for indecent assault range from 12 months imprisonment to 4 years. The gravity of the offence will determine the starting point for the sentence. The indecent assault of small children reflects on the gravity of the offence. The nature of the assault, whether it was penetrative, whether gratuitous violence was used, whether weapons or other implements were used and the length of time over which the assaults were perpetrated, all reflect on the gravity of the offence. Mitigating factors might be the previous good character of the accused, honest attempts to effect apology and reparation to the victim, and a prompt plea of guilty which saves the victim the trauma of giving evidence.

These are the general principles which affect sentencing under section 154 of the Penal Code. Generally, the sentence will fall within the tariff, although in particularly serious cases, a five year sentence may be appropriate. A non-custodial sentence will only be appropriate in cases where the ages of the victim and the accused are similar, and the assault of a non-penetrative and fleeting type. Because of the vast differences in different types of indecent assault, it is difficult to refer to any more specific guidelines than these.”

[40] This tariff was followed by His Lordship Justice Vinsent Perera in State v. Mohammed Zubair [2017] FJHC 895; HAC 425 of 2016 (24 November 2017).

[41] This Court followed the said tariff for Indecent Assault in State v. Vuibau [2019] FJHC 1033; HAC291.2017 (29 October 2019).

[42] Accordingly, considering the objective seriousness of the offence and taking into consideration the nature and the gravity of the offence and your culpability and degree of responsibility for the offence, and also taking into consideration the aggravating factors and the mitigating factors, I impose on you a sentence of 2 years’ imprisonment for the fourth count of Indecent Assault.

[43] In the circumstances, your sentences are as follows:

Count 1 – Rape contrary to Section 207 (1) and (2) (b) and (3) of the Crimes Act – 14 years’ imprisonment.

Count 2- Rape contrary to Section 207 (1) and (2) (b) and (3) of the Crimes Act – 14 years’ imprisonment.

Count 3 – Rape contrary to Section 207 (1) and (2) (b) and (3) of the Crimes Act – 14 years’ imprisonment.

Count 4- Indecent Assault contrary to Section 212 of the Crimes Act – 2 years’ imprisonment.

I order that all four sentences of imprisonment to run concurrently. Therefore, your total term of imprisonment will be 14 years.

[44] The next issue for consideration is whether this Court should grant you any concessions due to your advanced age and also due to the hypertension that you are reported to be suffering from.

[45] Her Ladyship Madam Justice Nazhat Shameem in the case of Rokota v. The State [2002] FJHC 168; HAA 68 J of 2002S (23 August 2002) held as follows:

“...However, the Appellant is 64 years old. There are special sentencing principles for the sentencing of the elderly, particularly those of previous good character.”

[46] Making reference to Principles of Sentencing (2^nd Edition), by D. A. Thomas, Her Ladyship said:

“Recognition of age as a mitigating factor does not mean that imprisonment should never be imposed on elderly offenders, and the Court has upheld sentences of imprisonment on men in their seventies. It is however a long-established principle that a sentence should normally be shortened so as to avoid the possibility that the offender will not live to be released.”

[47] However, considering all the facts and circumstances of this case, especially the fact that the complainant herself was merely 11-12 years of age at the time of the incidents and was your grandniece, and the fact that you had abused her on multiple occasions, I am not inclined to reduce the primary sentence or head sentence I am imposing on you.

[48] Accordingly, I sentence you to a term of 14 years’ imprisonment.

[49] However, in determining the non-parole period to be imposed on you, I have given due consideration to your advanced age. Accordingly, pursuant to the provisions of Section 18 of the Sentencing and Penalties I fix your non-parole period as 9 years’ imprisonment. I also order the Prison authorities to ensure that you are given proper treatment for your hypertension while you are serving your sentence of imprisonment.

[50] Section 24 of the Sentencing and Penalties Act reads thus:

“If an offender is sentenced to a term of imprisonment, any period of time during which the offender was held in custody prior to the trial of the matter or matters shall, unless a court otherwise orders, be regarded by the court as a period of imprisonment already served by the offender.”

[51] You have been in remand custody from 2 August 2019, the day on which you were taken into custody for this case, until 18 September 2020, the day on which this Court granted you bail. Thereafter, you were remanded into custody once again by this Court on 12 October 2020. Accordingly, you have been in custody for a total period of nearly 15 months. The period you have been in custody shall be regarded as period of imprisonment already served by you. I hold that a period of 15 months should be considered as served in terms of the provisions of Section 24 of the Sentencing and Penalties Act.

[52] In the result, your final sentence is as follows:

Head Sentence - 14 years’ imprisonment.

Non-parole period - 9 years’ imprisonment.

Considering the time you have spent in remand, the time remaining to be served by you is as follows:

Head Sentence - 12 years’ and 9 months imprisonment.

Non-parole period - 7 years’ and 9 months imprisonment.

[53] You have 30 days to appeal to the Court of Appeal if you so wish.

Riyaz Hamza
JUDGE

HIGH COURT OF FIJI

AT SUVA
Dated this 11^th Day of November 2020

Solicitors for the State : Office of the Director of Public Prosecutions, Suva.

Solicitors for the Accused : Office of the Legal Aid Commission, Suva.