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State v Nawaibure - Sentence [2023] FJHC 870; HAC17.2019 (30 November 2023)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO : HAC 17 OF 2019

STATE

V

SAKIUSA NAWAIBURE

Counsel : Mr U. Lal for State
Ms L. Naikawakawavesi for Defence

Date of Judgment: 03 November 2023

Date of Sentence Hearing: 30 November 2023

Date of Sentence 30 November 2023

SENTENCE

1. Mr. Sakiusa Nawaibure, you stand convicted of one count of digital Rape Contrary to Section 207 [1] and [2] [b] and [3] of the Crimes Act, 2009 and one count of vaginal Rape contrary to Section 207 [1] and [2] [a] and [3] of the Crimes Act, 2009.
   
2. The victim was 10 years old at the time of the offence. She was residing in Vatukoula with her parents. She went to the river to wash doormats. After washing the doormats, she bathed in the river with her three cousins and a friend. When her cousins were swimming up in the river, you approached the victim from her back and pulled her leg down to the water. You moved your hand inside her panty and forcefully inserted your finger into her vagina. She was scared and could not do anything. When she raised alarm, you swam away from her but soon returned to her and pulled her towards you. You took off her panty and inserted your penis into her vagina from the back. She felt the pain. She did not complain to her mother because she was scared. The matter came to light when her mother noticed pus on her panty. The matter was reported to the Village Headman and then to the police.
   
3. The maximum punishment for Rape is life imprisonment. The sentencing tariff for child rape ranges from 11 years to 20 years’ imprisonment. [Aitcheson v [2018] FJSC 29; CAV0012.2018 (2 November 2018)].
   
4. In selecting your sentence that is best suited to you, I must have regard to the proportionality principle enshrined in the Constitution and the Sentencing and Penalties Act 2009 (SPA). I would also have regard to Section 4 of the SPA, the maximum penalty prescribed for the offence, the current sentencing practice and the applicable guidelines issued by the courts. Having due regard to the seriousness of the offence and harm caused to the victim, I would select the starting point. The final sentence will be determined after making due adjustments for the aggravating and the mitigating factors.
   
5. The courts in the Republic of Fiji, at all levels, have repeatedly pronounced that rape of a child is the most serious form of sexual violence. 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. Our society and the children, expect elders and relatives in a domestic setting to care and protect them. The children are entitled to live their lives free from any form of physical or emotional abuse.
   
6. Sexual offences involving children are on the rise in Fiji. The courts have emphasised that the increasing prevalence of this offence in our 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 offenders must receive harsher punishment to mark the society’s outrage and denunciation against sexual abuse of children. The main purpose of your punishment is to condemn your action and to protect the public from the commission of such crimes by making it clear to you and to others with similar impulses that, if anyone yield to this crime will meet with severe punishments.
   
7. According to Section 17 of the Sentencing and Penalties Act 2009, if an offender is convicted of more than one offence founded on the same facts, or which form a series of offences of the same or a similar character, the court has the discretion to impose an aggregate sentence of imprisonment in respect of those offences. This is a fit case to impose an aggregate sentence for both offences.
   
8. Having taken into consideration the seriousness of the offence and the harm caused to the victim, I select a starting point of 11 years for each offence from the bottom range of the tariff as the first step in the sentencing process.
   
9. I identified the following aggravating and mitigation factors:
   

Aggravating factors:

(a). There is a considerable age gap between you and the victim.

(b). You exploited the vulnerability of a child.

(c). You warned the victim not to tell anyone about the incident.

Mitigating Factors:

(a). In mitigation, your counsel informed that you are a 26 year old casual farmer and the sole breadwinner of your family. You are married with two children. You are looking after your elderly parents at Lololevu. Personal circumstances however are of little mitigatory value.

10. I add 02 years and 06 months to the starting point of 11 years for above mentioned list of aggravating factors to arrive at an interim sentence of 13 years and 06 months imprisonment. I reduce 1 year for mitigating factors to arrive at an aggregate sentence of 12 years and 06 months imprisonment.
    
11. According to the State, you had been in remand roughly for 06 months. The remand period is deducted from your sentence to arrive at a final aggregate sentence of 12 years’ imprisonment.
    
12. Taking into consideration your potential for rehabilitation and the gravity and the impact of your offence on the society, I impose a non- parole period of 10 years.
    
13. Summary
    

Mr. Sakiusa Nawaibure, you are sentenced to an aggregate imprisonment term of 12 years with a non-parole period of 10 years. You are eligible for parole when you have served 10 years in the correction facility.

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

Aruna Aluthge
Judge

30 November 2023
At Lautoka

Counsel:
- Office of the Director of Public Prosecution for State
- Legal Aid Commission for Defence