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State v Matakibau - Sentence [2023] FJHC 512; HAC20.2022 (27 July 2023)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Case No.: HAC 20 of 2022

STATE

V

INOSI NOA MATAKIBAU

Counsel : Ms. S. Swastika for the State.

: Ms. K. Vulimainadave and Mr. B. Makanjee for the Accused.

Dates of Hearing : 03, 04 and 05 July, 2023
Closing Speeches : 06 July, 2023
Date of Judgment : 07 July, 2023
Date of Sentence : 27 July, 2023

SENTENCE

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

1. In a judgment delivered on 7^th July, 2023 this court found the accused guilty and convicted him for one count of rape, one count of attempted rape and one of sexual assault as charged.
   

2. The brief facts were as follows:

1. On 10^th February, 2022 the 9 year old victim and her younger sister went to a plantation near their house to pick some guavas. While picking guavas the accused who is a neighbour of the victim came and told the victim that he will take her towards the top end of the plantation where there were more guavas.
   
2. The victim’s sister wanted to go with them but the accused told the victim’s sister to go home since there were dogs at the place where they were going. Instead of taking the victim to the place the accused had mentioned, he took the victim to her grandmother’s plantation. The accused cleaned the area and told the victim to lie down and remove her panty. The victim did as she was told.
   

100. The accused spread the legs of the victim and started licking her vagina thereafter he penetrated the vagina of the victim with his finger. The accused did not stop, he took out his penis and slid his penis on the vaginal area of the victim.
     

4. After this the victim ran and told her aunt Litiana, the matter was reported to the police the next day. The victim was medically examined and there were recent injuries seen in the genitalia of the victim.
   

3. 3. Both counsel filed their sentence submissions including the victim impact statement and mitigation for which this court is grateful.
   
4. The following personal details and mitigation have been submitted by the counsel for the accused:
   
   1. The accused is a First offender;
   2. Was 51 years of age at the time;
   100. Is a Farmer and has his own piggery farm;
   4. He is married and has three children;
   5. Cooperated with the police during investigations;
   6. Promises not to reoffend.

5. 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

6. The aggravating factors are:

(a) Breach of Trust

The victim and the accused are known to each other they were neighbours. The accused grossly breached the trust of the victim by his actions.

(b) Victim was vulnerable

The accused knew the victim was alone in the plantation, he took advantage of the victim’s vulnerability and innocence. There is also some degree of planning by the accused he stopped the victim’s younger sister from going with them and he misrepresented to the victim that there were more guavas on the other side of the plantation.

(c) Age Difference

The victim was 9 years of age whereas the accused was 51 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 the unexpected sexual encounters.

(e) Victim Impact Statement

In the victim impact statement the victim stated that her life changed after what the accused did to her. The victim’s friends in school tease her by taking the accused name which upsets her. She is still scared of the accused for what he had done to her.

(f) Prevalence of the offence committed

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

TARIFF

7. 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.
   
8. The maximum penalty for the offence of attempt to commit rape is 10 years imprisonment.
   
9. The maximum penalty for the offence of sexual assault is 10 years imprisonment. The tariff for this offence is from 2 years to 8 years imprisonment depending on the category of offending (see State vs. Epeli Ratabacaca Laca criminal case no. HAC 252 of 2011 (14 November, 2012).
   
10. 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.
    
11. 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. 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.
    
12. The Supreme Court in Mohammed Alfaaz v State [2018] FJSC 17; CAV0009.2018 (30 August 2018) has stated the above in the following words 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 [2016] FJCA 118 wherein court said that “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 are not adequately punished by courts and such a society will not in the long run be able to sustain itself as a civilised entity.”

13. Madigan J in State v Mario Tauvoli HAC 027 of 2011 (18 April, 2011) said:

“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 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.”

14. The Supreme Court in Felix Ram v State [2015] FJSC 26; CAV12.2015 (23 October 2015) mentioned a long list of factors 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.

15. The three counts 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 in accordance with section 17 of the Sentencing and Penalties Act.
    
16. 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.
    
17. I also note from the court file that the accused was remanded for 20 days in exercise of my discretion and in accordance with section 24 of the Sentencing and Penalties Act the sentence is further reduced by 1 month as a period of imprisonment already served. In view of the above, the final aggregate sentence of the accused is 15 years and 11 months imprisonment.
    
18. Mr. Matakibau you have committed serious offences against the victim who was your neighbour. The victim was unsuspecting and vulnerable, you cannot be forgiven for what you have done to her.
    
19. 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.
    
20. Having considered section 4 (1) of the Sentencing and Penalties Act and the serious nature of the offences committed on the victim who was 9 years old 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.
    
21. 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.
    
22. 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.
    
23. In summary, I pass an aggregate sentence of 15 years and 11 months imprisonment for one count of rape, one count of attempted rape and one count of sexual assault with a non-parole period of 13 years to be served before the accused is eligible for parole.
    
24. 30 days to appeal to the Court of Appeal.
    

Sunil Sharma
Judge

At Lautoka
27 July, 2023

Solicitors
Office of the Director of Public Prosecutions for the State.
Office of the Legal Aid Commission for the Accused.