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State v Naqovu - Sentence [2022] FJHC 28; HAC79.2018 (25 January 2022)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Case No.: HAC 79 of 2018

STATE

V

ISEI NAQOVU

Counsel : Ms. L. Latu and Mr. A. Kumar for the State.

: Mr. J.K. Singh for the Accused.

Dates of Hearing : 08, 09, 10, 13, 14, 15 and 17 December, 2021
Closing Speeches : 23 December, 2021
Date of Judgment : 23 December, 2021
Date of Submissions : 24 January, 2022
Date of Sentence : 25 January, 2022

SENTENCE

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

1. In a judgment delivered on 23^rd December, 2021 this court found the accused guilty and convicted him for two counts of rape as per the following information:

COUNT ONE
Statement of Offence

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

Particulars of Offence

ISEI NAQOVU on the 26^th day of March, 2018 at Sigatoka in the Western Division, inserted his finger into the vagina of “RK”, a 9 year old girl.

COUNT TWO
Statement of Offence

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

Particulars of Offence

ISEI NAQOVU on the 26^th day of March, 2018 at Sigatoka in the Western Division, inserted his penis into the vagina of “RK”, a 9 year old girl.

2. The brief facts were as follows:

In the year 2018 the victim was 9 years of age, on 26^th March after swimming in the nearby sea with her friends she went to the house of her friend Mili. While sitting outside Mili’s house the accused (victim’s uncle) came and sat beside her.

3. After a while the accused went into the kitchen and called the victim. As soon as she went into the kitchen, the accused pulled her singlet and started sucking her breast thereafter he forcefully pulled down the victim’s pants and panty and then inserted his finger into her vagina.
   
4. After this, the accused made the victim lie on the floor and then forcefully inserted his penis into her vagina. The victim felt pain when the accused was doing the above, she was frightened, shocked and started crying.
   
5. The victim pushed the accused and ran home. At home she told her mother about what the accused had done to her. Shortly after, the matter was reported to the police and the victim was medically examined.
   
6. 6. Both counsel filed their sentence submissions including the victim impact statement and mitigation for which this court is grateful.
   
7. The following personal details and mitigation have been submitted by the counsel for the accused:
   

a) The accused is a First offender;

b) 43 years of age;

c) Diver by profession;

d) Earns about $150.00 to $200.00 per week;

e) Sole bread winner of the family;

f) Not married, supports elderly mother and sick brother;

g) Fourth eldest child in the family.

8. I accept in accordance with the Supreme Court decision in Anand Abhay Raj –vs.- 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.

AGGRAVATING FACTORS

9. The aggravating factors are:

(a) Breach of Trust

The victim is the niece of the accused. He had some degree of responsibility to protect the victim yet he grossly breached the trust of his niece by his actions.

(b) Victim was vulnerable

The accused knew the victim was alone in the kitchen, he took advantage of the victim’s vulnerability and innocence. There is also some degree of planning by the accused he went into the kitchen first and then called the victim knowing very well that there was no one else around. The accused took advantage of the opportunity.

(c) Age Difference

The victim was 9 years of age whereas the accused was 38 years of age. The age difference was substantial.

(d) Exposing a child to sexual abuse

The accused had exposed the victim to sexual activity at a very young age he basically robbed her of her innocence by exposing her to unexpected sexual encounters.

(e) Victim Impact Statement

In the victim impact statement the victim stated that her life changed after what the accused had done to her. When she thinks of the incidents she blames herself, gets flash backs whenever she goes past the accused house. The victim has also become short tempered and experiences loss of concentration.

(f) Prevalence of the offence committed

There has been an increase in such offending by people who are mature adults and closely related to the victim.

10. The maximum penalty for the offence of rape is life imprisonment. The Supreme Court of Fiji in Gordon Aitcheson vs. The State, (supra) has confirmed the new tariff for the rape of a juvenile to be a sentence between 11 years to 20 years imprisonment.
    
11. There has been an increase in sexual offences involving offenders who are known to the victim and are mature adults. It is shocking to note the manner in which the accused had committed these offences on the victim.
    
12. Rape of a child is one of the most serious forms of sexual violence and offenders should be dealt with severely. Children are entitled to live their lives free from any form of physical or emotional abuse. When family members sexually abuse children, violating the Domestic Violence Act, they should not expect any mercy from this court. The punishment ought to be such that it takes into account the society’s outrage and denunciation against such conduct. A long term imprisonment becomes inevitable in such situations.
    
13. The Supreme Court in Mohamm> Alfaaz v Stat State [201SC 17i>; CAV0009.2018 (30 August 2018) has stated ated the above in the following words at p at paragraph 54 that:

“It is useful to refer to the observation expressed by the Fiji Court of Appeal in Matasavui v State; Crim. App. No. AAU 0036 of 2013: 30 September ef="http://www.paclii.olii.org/fj/cases/FJCA/2016/118.html?stem=&synonyms=&query=Silas%20Sanjeev%20Mani" title="View Case">[2016] FJCA 118 wherein court that “N220;No society can afford to tolerate an innermost feeling among the people that offenders of sexual offenders of sexual crimes committed against mothers, daughters and sisters ar adequately punished by couy courts and such a society will not in the long run be able to sustain itself as a civilised entity.”

14. Madigan J in StaMario Tauvoli HA60;HAC 027 of 208 April, ril, 2011) said:

“Rape of children is a very serious offendeed and it seems to be very prevalent in Fiji at the time. The legislation has dictated hted harsh penalties and 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.”

15. The Supreme Court in Felix Ram v Sta60; [2015] FJSC 26; CAV12.2015 (23 October 2015) meed a long list of factors tors that should be considered in punishing the offenders of child rape cases. Those factors would include:

(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 pre sent;

(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.

16. The two counts of rape for which this accused has been convicted are offences founded on the same facts and are of similar character, I therefore prefer to impose an aggregate sentence for the two offences in accordance with section 17 of the Sentencing and Penalties Act.
17. After assessing the objective seriousness of the offences committed I take 11 years imprisonment (lower range of the scale) as the starting point of the aggregate sentence. The sentence is increased for the aggravating factors, the personal circumstances and family background of the accused has little mitigatory value. However, I note that the accused has no previous convictions he comes to court as a person of good character hence the sentence is reduced for mitigation and good character.
    
18. I also note from the court file that the accused was remanded for 2 months and 22 days in exercise of my discretion and in accordance with section 24 of the Sentencing and Penalties Act the sentence is further reduced by 3 months as a period of imprisonment already served. In view of the above, the final aggregate sentence is 15 years and 9 months imprisonment.
    
19. Mr. Naqovu you have committed serious offences against your niece who was also residing in the same settlement as you. The victim was unsuspecting and vulnerable, you cannot be forgiven for what you have done to her.
    
20. The victim has also been psychologically and emotionally affected rape is not only a physical act, it destroys the very soul of the victim, and also brings about a sense of hopelessness and anxiety which cannot be measured or repaired by anyone. You have scarred the life of your own niece forever. There is no doubt that a positive and a happy childhood memories contribute towards child development which is an inspiration for the future. Unfortunately, this is not so for the victim.
    
21. Having considered section 4 (1) of the Sentencing and Penalties Act and the serious nature of the offences committed on the victim who was the accused’s niece aged 9 years compels me to state that the purpose of this sentence is to punish offenders to an extent and in a manner which is just in all the circumstances of the case and to deter offenders and other persons from committing offences of the same or similar nature.
    
22. Under section 18 (1) of the Sentencing and Penalties Act (as amended), a non-parole period will be imposed to act as a deterrent to the others and for the protection of the community as well. On the other hand this court cannot ignore the fact that the accused whilst being punished should be accorded every opportunity to undergo rehabilitation. A non-parole period too close to the final sentence will not be justified for this reason.
    
23. Considering the above, I impose 13 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 and also meet the expectations of the community which is just in the circumstances of this case.
    
24. In summary, I pass an aggregate sentence of 15 years and 9 months imprisonment with a non-parole period of 13 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.
    
25. 30 days to appeal to the Court of Appeal.

Sunil Sharma
Judge

At Lautoka
25 January, 2021
Solicitors
Office of the Director of Public Prosecutions for the State.
Messrs. J. K Singh Lawyers, Sigatoka for the Accused.