IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION
CRIMINAL CASE NO: HAC 077 OF 2020LAB

STATE

V

JOSAIA NAIKALIVOU

Counsels	:	Ms. L.  Latu and Ms. M. Lomaloma for State  
			Ms. R. Raj and Ms. V. Kirti for Accused

Hearings	:	31 January, 1, 2, 3, and 4 February, 2022
Judgment	:	8 February, 2022
Sentence 	:	11 February, 2022

SENTENCE

1.	In a judgment delivered on 8 February 2022, you were found guilty and convicted on the following counts, in the following information:

COUNT ONE
Statement of Offence

	SEXUAL ASSAULT: Contrary to Section 210 (1) (a) of the Crimes Act 2009.
                    Particulars of Offence

	JOSAIA NAIKALIVOU, between the 1st of January 2019 and the 31st day of December 2019, at Burenicagi Settlement, Naweni in the Northern Division, unlawfully and indecently assaulted “V.B.”, by fondling her breasts.

COUNT TWO
Statement of Offence

	INDECENT ASSAULT: Contrary to Section 212 (1) of the Crimes Act 2009.
                    Particulars of Offence

	JOSAIA NAIKALIVOU, between the 1st of January 2019 and the 31st day of December 2019, at Burenicagi Settlement, Naweni in the Northern Division, unlawfully and indecently assaulted “V.B.”, by touching her thighs.

COUNT THREE
Statement of Offence

	INDECENT ASSAULT: Contrary to Section 212 (1) of the Crimes Act 2009.
                    Particulars of Offence

	JOSAIA NAIKALIVOU, between the 1st of January 2019 and the 31st day of December 2019, at Burenicagi Settlement, Naweni in the Northern Division, unlawfully and indecently assaulted “V.B.”, by touching her mouth

COUNT FOUR
Statement of Offence

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

                    Particulars of Offence

	JOSAIA NAIKALIVOU, between the 1st of January 2020 and the 31st day of August 2020, at Burenicagi Settlement, Naweni in the Northern Division, penetrated the vagina of “V.B.”, with his finger without her consent.
.
COUNT FIVE
Statement of Offence

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

                    Particulars of Offence

	JOSAIA NAIKALIVOU, between the 1st of January 2020 and the 31st day of August 2020, at Burenicagi Settlement, Naweni in the Northern Division, had carnal knowledge of “V.B.”, without her consent.

COUNT SIX
Statement of Offence

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

                    Particulars of Offence

	JOSAIA NAIKALIVOU, on an occasion other than that referred to in Count 5 between the 1st of January 2020 and the 31st day of August 2020, at Burenicagi Settlement, Naweni in the Northern Division, had carnal knowledge of “V.B.”, without her consent.

COUNT SEVEN
Statement of Offence

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

                    Particulars of Offence

	JOSAIA NAIKALIVOU, on an occasion other than that referred to in Count 5 and Count 6 between the 1st of January 2020 and the 31st day of August 2020, at Burenicagi Settlement, Naweni in the Northern Division, had carnal knowledge of “V.B.”, without her consent.

2.	The brief facts, as found by the court, after a defended hearing, were as follows.  The female complainant (PW1) was 14 years old, at the time of the offences.  You were 64 years old at the time. There was a 50 years age gap between the two of you.  You were related to the complainant’s family by marriage.  At the time of the offences, your wife was residing in America. You had a two storey house in the settlement, and the complainant’s family were your neighbours. You often invited the complainant and her 9 year old brother to come to your house to play and watch movies with you twin sons.

3.	On one occasion, sometimes between 1 January 2019 and 31 December 2019, the complainant came to your house with her younger brother to play with your twin sons and watch movies.  Because it was late, she and her brother slept in your house.  You told her to sleep in a bedroom.  When she was asleep, you went to her.  She woke up.  You then fondled her breasts, touched her thighs and touched her mouth (counts no. 1, 2 and 3).

4.	Again, sometime between 1 January 2020 and 31 August 2020, the complainant and her younger brother were at your house to play with your twins and watch movies.  After the movies, they slept with the twins in the sitting room.  Late at night, you carried the complainant into a bedroom and you forced yourself on her.  You first penetrated her vagina with your fingers, and later you inserted your penis into her vagina, without her consent. You knew she was not consenting to the above, at the time (counts no. 4 and 5).

5.	Again, sometime between 1 January 2020 and 31 August 2020, while the complainant was going to the river to bath, you dragged her into your dalo patch, and forcefully penetrated her vagina with your penis, without her consent.  You knew she was not consenting at the time (count no. 6). Again, sometime between 1 January 2020 and 31 August 2020, you repeated what you did in count no. 5 to the complainant at your house (count no. 7).  You had been tried and convicted of four rape counts, one sexual assault and two indecent assault counts in the High Court.

6.	The offence of rape carried a maximum sentence of life imprisonment (see Section 207 (1) of the Crimes Act 2009.). Parliament therefore views the offence as a serious one.  It violates the dignity of a person.  It is an unwarranted intrusion into the privacy of a person.  It is an ultimate act of showing utter disrespect to a person.  Therefore those who commit this offence, must expect a lengthy prison sentence to restore the balance, the harmony and atonement to the victim.  For the rape of child, that is, anyone less than 18 years old, the tariff is a sentence between 11 and 20 years imprisonment. I refer to the authority of Gordon Aitcheson v The State, Criminal Petition CAV 012 of 2018, Supreme Court of Fiji. Of course, the final sentence will depend on the mitigating and aggravating factors.

7.	“Sexual Assault”, contrary to section 210 (1) (a) of the Crimes Act 2009, carried a maximum penalty of 10 years imprisonment.

8.	“Indecent Assault”, contrary to section 212 (1) of the Crimes Act 2009, carried a maximum penalty of 5 years imprisonment.

9.	The aggravating factors in this case, were as follows:
(i)	Serious Breach of Trust by an Uncle. You were 64 years old, at the time of the offences.  The female complainant was 14 years old. You were her uncle by marriage.  In a village setting, the elder members were supposed to look after the younger ones in the village.  The complainant was a friend of your twin sons.  She often comes with her younger brother to play with your twins.  Her parents trusted you when she was in your house. Yet you did the unthinkable by sexually assaulting her and raping her in your house on six occasions (counts no. 1, 2, 3, 4, 5, and 7).  Your behavior cannot be tolerated in our society.  You must realized that you will have to serve a lengthy prison sentence as a warning to others not to commit these offence against children.
(ii)	The offences were premeditated and pre-planned.  Looking at the facts of your case, it was obvious that you planned this sexual attacks on the complainant.  You asked her parents to send her and her younger brother to your house to play and watch movies with your young twin sons.  However, this was nothing but a ploy to get her to you so that you could sexually attack her.  Your plans were really cunning and devious.  You will have to be punished for that.
(iii)	Rape of children. Unfortunately, this problem is becoming prevalent in our society, despite the heavy prison sentence passed by the courts for the rape of children.  The court had said in the past, and will keep on saying that it will not tolerate the abuse of children in our society.  As it had done in the past, and now is doing and will continue to do, it will pass heavy prison sentences for the rape of children, as a warning to others.
(iv)	By offending against the complainant, you had no regards to her right as a child, her right as a human being and her right to live a happy and peaceful life.
(v)	You had caused untold miseries to her family.

10.	The mitigating factors were as follows:
	(i)	At the age of 64 years, this was your first sexual offence;
(ii)	You had been remanded in custody since 28 October 2020,that is, approximately 1 year 3 months 13 days ago.

11.	I will start with the serious count of rape, that is, count no. 4.  I start with a sentence of 11 years imprisonment.  I add 5 years for the aggravating factors, making a total of 16 years imprisonment.  For time spent in remand while awaiting trial, I deduct 1 year 4 months, leaving a balance of 14 years 8 months.  Because the offences were his first sexual offence at the age of 64 years, I deduct 1 year 8 months, leaving a balance of 13 years imprisonment.  On count no. 4 (rape), I sentence you to 13 years imprisonment. 

12.	For count no. 5 (rape), I repeat the process and sentence in count no. 4 (rape).

13.	For count no. 6 (rape), I repeat the process and sentence in count no. 4 (rape).

14.	For count no. 7 (rape), I repeat the process and sentence in count no. 4 (rape).

15.	For count no. 1 (sexual assault), I sentence the accused to 4 years imprisonment. 

16.	For count no. 2 (indecent assault), I sentence the accused to 2 years imprisonment.

17. 	For count no. 3 (indecent assault), I sentence the accused to 2 years imprisonment.

18.	The summary of your sentence are as follows:
	(i)	Count No. 1	-	Sexual Assault	-	4 years imprisonment
	(ii)	Count No. 2	-	Indecent Assault	-	2 years imprisonment
	(iii)	Count No. 3	-	Indecent Assault	-	2 years imprisonment 
	(iv)	Count No. 4	-	Rape			-	13 years imprisonment
	(v)	Count No. 5	-	Rape			-	13 years imprisonment
(vi)	Count No. 6	-	Rape			-	13 years imprisonment
(vii)	Count No. 7	-	Rape			-	13 years imprisonment

19.	Because of the totality principle of sentencing, I direct that all the above sentences be made concurrent to each other, that is, a final sentence of 13 years imprisonment.

20.	Mr Josaia Naikalivou, for the sexual offences you committed against the 14 year old female complainant at Burenicagi Settlement, Naweni in the Northern Division, between 1st January 2019 and 31 August 2020, I sentence you to 13 years imprisonment, with a non-parole period of 11 years imprisonment, effective forthwith.

21.	Pursuant to section 4 (1) of the Sentencing and Penalties Act 2009, the above sentence is designed to punish you in a manner that is just in all the circumstances, protect the community, deter like-minded offenders and to signify that the court and the community denounce what you did to the 14 years old complainant between 1st January 2019 to 31 August 2020 at Naweni in the Northern Division.

22.	The 14 years old complainant’s name is permanently suppressed to protect her privacy.

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

								Salesi Temo
								    JUDGE

Solicitor for the State	:	Office of the Director of Public Prosecution, Labasa
Solicitor for the Accused	:	Legal Aid Commission, Labasa