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State v Suliana - Sentence in Absentia [2024] FJHC 305; HAC83.2023 (17 May 2024)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Case No.: HAC 83 of 2023

STATE

V

ETIKA PENE SULIANA

Counsel : Ms. S. Swastika for the State.
: Ms. B. Kumari and Ms. J. Terubea for the
Accused.

Dates of Hearing : 11, 12, 13, 18 March, 2024
Closing Speeches : 22 March, 2024
Date of Judgment : 18 April, 2024
Date of Sentence : 17 May, 2024

SENTENCE IN ABSENTIA

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

1. In a judgment delivered on 18^th April, 2024 this court acquitted the accused of four counts of rape but found him guilty of eight counts of sexual assault and convicted him accordingly.
   
2. The brief facts were as follows:
   1. The accused is the step father of the victim, the victim lived with the accused, her mother and step sister. From 2019 till 2022 the accused sexually abused the victim in her bedroom on many occasions when the victim’s mother and sister were fast asleep. In the year 2019 the victim was 8 years of age schooling in year 2.
      
   2. Whilst the victim slept in her bedroom with her younger sister the accused in the middle of the night would go on the bed of the victim remove her pants and panty and rub his fingers round and round, side to side on the vagina of the victim. When the accused did this, the victim felt pain.
      
   100. Shortly after, the accused would lift the victim’s t-shirt hold her breast and squeeze it. The victim did not tell anyone about what the accused was doing to her since she was scared of the accused.
        
   4. However, on 13^th October, 2020 when the victim could not take the abuse anymore she told her School Teacher and Child Protection Officer and thereafter on 25^th January, 2023 to her aunt about what the accused was doing to her. The matter was reported to the police the accused was arrested, caution interviewed and charged.
      
3. The state counsel filed sentence submissions with the victim impact statement whereas the defence counsel filed mitigation submissions for which this court is grateful.
   
4. The following personal details and mitigation was submitted by the counsel for the accused:
   1. The accused is now 28 years old;
   2. Is a first offender;
   100. Is married with one child who is 4 years old;
   4. Sole bread winner for the family;
   5. Is a casual labourer earning $120.00 per week;
   6. Seeks leniency of the court.
      
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 following aggravating factors are obvious in this case:

1. Breach of Trust

The victim and the accused are known to each other. The accused is the step father of the victim. The accused grossly breached the trust of the victim by his actions. The accused was bold and undeterred in what he did to the victim.

2. Victim was vulnerable

The victim was vulnerable, unsuspecting and helpless the accused took advantage of the situation and sexually abused her. The accused abused the victim in the middle of the night when the victim’s mother and sister were asleep.

100. Prevalence of offending

There has been a notable increase in sexual offence cases by individuals known to the victim. The victim was 8 to 11 years and the accused was about 23 to 26 years the age difference is substantial.

4. Safety of the victim

The victim was supposed to be safe in her bedroom but this was not to be due to the actions of the accused.

5. Planning

There is a degree of planning involved the accused knew the mother and the sister of the victim were sleeping so he took advantage of the victim.

6. Victim Impact Statement

According to the victim impact statement the victim has suffered psychological and emotional harm as follows:

a) Hates the accused for what he has done;

b) Has been separated from her mother and sister who she loves and misses a lot;

c) Has become short tempered after the incidents.

TARIFF

7. 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). At paragraphs 6 and 7 Madigan J. had stated the following:

6. The maximum penalty for this offence is ten years imprisonment. It is a reasonably new offence, created in February 2010 and no tariffs have been set, but this Court did say in Abdul Kaiyum HAC 160 of 2010 that the range of sentences should be between two to eight years. The top of the range is reserved for blatant manipulation of the naked genitalia or anus. The bottom of the range is for less serious assaults such as brushing of covered breasts or buttocks.

7. A very helpful guide to sentencing for sexual assault can be found in the United Kingdom's Legal Guidelines for Sentencing. Those guidelines divide sexual assault offending into three categories:

Category 1 (the most serious)

Contact between the naked genitalia of the offender and naked genitalia face or mouth of the victim.

Category 2

(i) Contact between the naked genitalia of the offender and another part of the victim's body;

(ii) Contact with the genitalia of the victim by the offender using part of his or her body other than the genitalia, or an object;

(iii) Contact between either the clothed genitalia of the offender and the naked genitalia of the victim; or the naked genitalia of the offender and the clothed genitalia of the victim.

Category 3

Contact between part of the offender's body (other than the genitalia) with part of the victim's body (other than the genitalia).

8. These very sensible categories of offending are adopted by this Court and they provide a very useful guide to sentencing within the tariff of two to eight years.

8. Section 17 of the Sentencing and Penalties Act states:

“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 may impose an aggregate sentence of imprisonment in respect of those offences that does not exceed the total effective period of imprisonment that could be imposed if the court had imposed a separate term of imprisonment for each of them.”

9. I am satisfied that the 8 offences for which the accused stands convicted are offences founded on the same facts and are of similar character. Therefore taking into account section 17 of the Sentencing and Penalties Act I prefer to impose an aggregate sentence for the eight offences. It is to be noted that the offences of sexual assault falls under category 2 (ii) and 3 of Laca’s case (supra).
   

REPRESENTATIVE COUNT

10. Although the accused is charged with four representative counts of sexual assault, and he has also been found guilty of four representative counts of sexual assaults being lesser offences of rape. The accused cannot be punished for the other occasions of sexual assault but for one occasion only as per each count (see Senilolokula v State, Criminal Petition no. CAV 0017 of 2017 (26 April, 2018).
    
11. Bearing in mind the objective seriousness of the offences committed I take 2 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, the accused good character and other mitigation are substantive factors. The sentence is reduced for mitigation and good character.
    
12. I note the accused has been in remand for about 2 months and 2 days, in accordance with section 24 of the Sentencing and Penalties Act the sentence is further reduced as a period of imprisonment already served.
    
13. Under the aggregate sentencing regime of section 17 of the Sentencing and Penalties Act the final aggregate sentence of imprisonment for eight counts of sexual assault is 5 years, 9 months and 28 days.
    
14. I am satisfied that the term of 5 years, 9 months and 28 days imprisonment does not exceed the total effective period of imprisonment that could be imposed if the court had imposed a separate term of imprisonment for each offence.
    
15. Having considered section 4 (1) of the Sentencing and Penalties Act and the serious nature of the offences committed on the victim 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.
    
16. 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.
    17. In imposing a non-parole period I have taken into consideration the principle stated by the Court of Appeal in Paula Tora v The State AAU0063.2011 (27 February 2015) at paragraph 2, Calanchini P (as he was) said:

[2] The purpose of fixing the non-parole term is to fix the minimum term that the Appellant is required to serve before being eligible for any early release. Although there is no indication in section 18 of the Sentencing and Penalties Decree 2009 as to what matters should be considered when fixing the non-parole period, it is my view that the purposes of sentencing set out in section 4(1) should be considered with particular reference to re-habilitation on the one hand and deterrence on the other. As a result the non-parole term should not be so close to the head sentence as to deny or discourage the possibility of re-habilitation. Nor should the gap between the non-parole term and the head sentence be such as to be ineffective as a deterrent. It must also be recalled that the current practice of the Corrections Department, in the absence of a parole board, is to calculate the one third remission that a prisoner may be entitled to under section 27 (2) of the Corrections Service Act 2006 on the balance of the head sentence after the non-parole term has been served.

18. The Supreme Court in accepting the above principle in Akuila Navuda v The State [2023] FJSC 45; CAV0013.2022 (26 October 2023) stated the following:

Neither the legislature nor the courts have said otherwise since then despite the scrutiny to which the non-parole period has been subjected. The principle that the gap between the non-parole period and the head sentence must be a meaningful one is obviously right. Otherwise there will be little incentive for prisoners to behave themselves in prison, and the advantages of incentivising good behaviour in prison by the granting of remission will be lost. The difference of only one year in this case was insufficient. I would increase the difference to two years. I would therefore reduce the non-parole period in this case to 12 years.

19. In view of the above, I impose 3 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 which is just in the circumstances of this case.
    
20. The accused has committed serious offences against the victim she was 8 years when the offences started till she was 11 years. Being the step father of the victim the accused had a responsibility towards the victim. The accused grossly breached the trust of the victim by his actions.
    
    21. I am sure it will be difficult for the victim to forget what the accused had done to her. What the accused did to the victim was senseless and self centred the accused did not care about what the victim was undergoing when he was sexually abusing the victim in the middle of the night.
        
    22. In summary, I pass an aggregate sentence of 5 years, 9 months and 28 days imprisonment for eight counts of sexual assault the accused has been convicted of with a non-parole period of 3 years to be served before he 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.
        
    23. The sentence is to begin from the day the accused is arrested.
        
    24. 30 days to appeal to the Court of Appeal.
        

Sunil Sharma
Judge

At Lautoka
17 May, 2024

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