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State v Domokamica - Sentence [2022] FJHC 314; HAC214.2020 (17 June 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 214 of 2020

THE STATE

vs.

PAULO DOMOKAMICA

Counsel : Ms. U.M.Tamanikaiyaroi with Ms. S. Bibi for State
Ms. M. Ratidara for the Accused

Dates of Hearing : 14, 15 June 2022
Date of Judgment : 16 June 2022
Date of Sentence : 17 June 2022

SENTENCE

1. MR. PAULO DOMOKAMICA, you stand convicted after trial of one count of Rape contrary to Section 207 (1) and (2) (b) and (3) of the Crimes Act 2009 and come before this Court for sentence.
   
2. Your victim is a child and was only 2 years old at the time of the incident. Her father had brought her and her younger brother to the canteen he was running in Nakasi because her mother had given birth to a child. When the cigarettes he was selling at the canteen ran out, he had no option but to call you to look after the children until he bought some cigarettes from a nearby supermarket. Her father trusted you as a friend and that’s why you were entrusted with that responsible task. You betrayed that trust and took this opportunity to satisfy your lustful demands. Paulo, you touched this child’s vulva with your hand and penetrated her vulva causing an abrasion for her to bleed. It was a hard touch and she felt the pain. The matter came to light when she complained to her father. The doctor who examined the victim confirmed that she was digitally penetrated.
   
3. The maximum penalty for Rape is life imprisonment. The sentencing tariff for rape of a child ranges from 11 to 20 years’ imprisonment (Aitcheson v State [2018] FJSC 29; CAV0012.2018 (2 November 2018).
   
4. In the sentencing process, I must have regard to the proportionality principle enshrined in the Constitution, the Sentencing and Penalties Act 2009 (SPA), the current sentencing practice and the applicable guidelines issued by the courts. I will select an appropriate starting point having regard to the seriousness of the offence and the impact or harm caused to the victim. Then I will adjust your sentence by looking at the aggravating and mitigating factors to arrive your final sentence.
   
5. The maximum sentence prescribed by the Parliament indicates that the offence of Rape is a serious offence. When it is committed on a young child the seriousness is at its height. The Courts in Fiji have dealt the offenders with harsher punishments. The United Nations Convention on Rights of the Child to which Fiji is a party and our own Constitution require the courts to protect the children who are vulnerable members of our society. The children are entitled to live their lives free from any form of physical or emotional abuse. Psychologists opine that the effect of sexual abuse on their later development is profound.
   
6. The Courts in Fiji have emphasised that the increasing prevalence of this offence in the community calls for deterrent sentences. The duty of this Court is to see that the sentences are such as to operate as a powerful deterrent factor to prevent the commission of such offences. The rapists must receive condign punishment to mark the society’s outrage and denunciation against sexual abuse of children. The main purpose of your punishment is to protect the community and to reflect the abhorrence of the society.
   
7. Having taken into consideration the seriousness of the offence and the harm caused to the victim, I select a starting point of 11 years from the lower range of the tariff as the first step in the sentencing process.

8. In the light of the Supreme Court decision in Ram v State [2015] FJSC 26; CAV12.2015 (23 October 2015), and the helpful submissions of the Counsel, I have identified the following aggravating and mitigation factors:
   

Aggravating factors:

(a) The victim was entrusted to you by her father because he trusted you as a friend. You breached that trust.

(b) There is a huge age difference between you and the victim.

(c) You exploited the vulnerability of a young child when her father was away.

(d) You caused an injury to victim’s genitalia.

(e) The victim impact statement filed by the State indicate that the offence has caused a considerable psychological impact on the victim.

Mitigating Factors:

(a). Your personal circumstances have very little mitigatory value- Raj v The State [2014] FJSC 12 CAV0003.2014 (20^th August 2014). You are 32 years of age, single and unemployed.

(b). You do not have any previous convictions. You have maintained a clear record over the past 32 years of your life. However, your clear record is of little value in this case because you committed this crime in breach of trust. Senilolokula v State [2018] FJSC 5; CAV0017.2017 (26 April 2018)

9. I add 3 years to the starting point of 11 years for above mentioned list of aggravating factors and reduce 1 year for mitigating factors to arrive at a sentence of 13 years’ imprisonment.
   
10. You have been in remand for nearly two years since your arrest. Exercising my discretion under Section 24 of the Sentencing and Penalties Act, I reduce the time spent in remand from your sentence to arrive at a final sentence of 11 years’ imprisonment.
    
11. Taking into consideration your age, potential for rehabilitation, and the societal interests, I impose a non- parole period of 9 years.
    

12. Summary.

MR. PAULO DOMOKAMICA, you are sentenced to an imprisonment term of 11 years with a non-parole period of 9 years.

You have 30 days to appeal to the Fiji Court of Appeal.

Aruna Aluthge
Judge

17 June 2022

At Suva

Counsel:

- Office of the Director of Public Prosecution for State

- Legal Aid Commission for Accused