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State v Vatudau - Sentence [2024] FJHC 626; HAC205.2023 (15 October 2024)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 205 of 2023

STATE

v

SEVESI VATUDAU

Counsel: Ms. S. Bibi for the State
Mr. S. Ravu for the Accused

Date of Sentence/Mitigation Submission: 30 September 2024
Date of Sentence: 15 October 2024

SENTENCE

Caveat – The victim shall herein be referred as ‘KLM’ pursuant to the name suppression Order.

1. Sevesi Vatudau, the accused, was tried, found guilty, and convicted of the offence of Rape contrary to section 207(1) & 2(a) of the Crimes Act 2009 laid out as follows in the Information by the Director of Public Prosecutions dated 8 August 2023:
   

COUNT ONE

Statement of Offence

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

Particulars of Offence

SEVESI VATUDAU on the 22^nd day of April, 2023 at Nawaisomo Village, Beqa Island in the Central Division, penetrated the vagina of KLM with his penis, without her consent.

Brief facts

2. The complainant KLM (PW1) is 15 years old [D.O.B – 3 March 2009] and reside at Nawaisomo village on the island of Beqa with her father Waisele Tuivuya and mother Keasi Lewenibure, and attends Beqa Yanuca Secondary School. KLM has known the accused Sevesi Vatudau since she was small and also refers to him as Vesi. KLM and Sevesi Vatudau a.k.a Vesi are cousins through KLM’s father who calls Sevesi Vatudau ‘luvequ’ or son. KLM recalled that on the evening of 22 April 2023 she was with Sevesi Vatudau and others at Vanuadina house belonging to KLM’s Tua Aisea located about 7 to 10 meters away from KLM’s house named Bolatagane. On Saturday 22 April 2023 KLM went to the seafront then a Mereoni called and asked KLM to go and charge her phone. KLM then took Mereoni’s phone to have it charged, and while walking towards Mereoni’s house, Sevesi Vatudau called and asked KLM for her to clean his eyelashes, to which KLM replied lying to Sevesi Vatudau that she was on an errand to buy biscuit. KLM then ran to the seaside, turned around, and went to sit inside Vanuadina house with Mere, Vasiti, Raijieli and Boca. While sitting in Vanuadina house, Sevesi Vatudau approached and asked KLM again to clean his eyelashes, and both laughed at each other. KLM was then called by her mother from Bolatagane house instructing KLM to go over and prepare the food, and KLM returned to Bolatagane house and spread the blankets, and thereafter returned to Vanuadina house and lied down there in the presence of Mere, Vasiti, Raijieli, Boca including Sevesi Vatudau. While lying down at Vanuadina house, Sevesi Vatudau told them a story and thereafter KLM and Raijieli went to Sekove’s house to watch movie, and Sekove’s house is about 5 to 6 meters away from Vanuadina house. After watching movie at Sekove’s house, KLM and Raijieli left Sekove’s house and went to sit outside beside the Vunivala tree with KLM’s elder sister. KLM and Raijieli then returned to Vanuadina house after 10pm and sat in the sitting room inside Vanuadina house with Boca and Sevesi Vatudau. Sevesi Vatudau then gave his phone to Raijieli to use to go online at the front door, while he conversed with KLM. Sevesi Vatudau then asked KLM to bring him a cup of water, however KLM went to sit beside Raijieli at the front door. Sevesi Vatudau then threw a bottle at KLM, and KLM told him to stop and threw the bottle back at Sevesi Vatudau. Mere who was lying in the room in Vanuadina house then told KLM and the others to go and lie down in the kitchen and turn off the kitchen light. KLM, Boca and Sevesi Vatudau then went to lie down in the kitchen, while Raijieli remained in the sitting room.
   

While in the kitchen, KLM told Sevesi Vatudau to turn on his torch light, and when KLM stood up to go home Sevesi Vatudau pulled her beside the toilet and started touching KLM’s breast and private part with his hand, to which KLM reacted by telling Sevesi Vatudau not to touch her. KLM was wearing a bra when Sevesi Vatudau squeezed her breast, and he was able to squeeze her breast by pulling up KLM’s jacket, to which KLM reacted by pulling down her jacket, but Sevesi Vatudau told her to pull it up. KLM felt afraid when Sevesi Vatudau squeezed her breast for a while. Sevesi Vatudau then told KLM to take off her pants, and when KLM tried to pull up her pants Sevesi Vatudau instead kept pulling it down. Then Sevesi Vatudau abruptly turned KLM towards the wall beside the toilet then put his ‘yaya vakaturaga’ meaning penis into KLM’s ‘yaya vakamarama’ meaning vagina for a short while, and KLM continued to feel afraid at that particular moment, and then Sevesi Vatudau ejaculated on KLM’s knee when KLM was pulling up her pants. When Sevesi Vatudau had put his penis into KLM’s vagina, KLM reacted by telling Sevesi Vatudau to stop. KLM was standing upright when Sevesi Vatudau put his penis into her vagina, and he was standing too and told KLM to bend over. After Sevesi Vatudau had ejaculated, KLM then pulled up her pants and skirt, and returned to her home named Bolatagane.

On Monday 24 April 2023 KLM went to school and told her friends namely Akanisi and Seini about what Sevesi Vatudau had done to her on the night of Saturday 22 April 2023 at Vanuadina house. Akanisi and Seini then told KLM to report the matter to their school teacher Ms. Kinisimere Korowaqa Vukusiga (PW2), which they did, and KLM then had a private conversation with PW2.

According to Kinisimere Korowaqa Vukusiga (PW2), who is a teacher at Beqa Yanuca Secondary School, on Monday 24 April 2023 she was in the staff room when she saw KLM and two other girls outside the staff room, and asked them as to why they were there, to which the two girls signaled to PW2 saying that KLM wanted to see PW2. PW2 then told KLM to get a pass from her subject teacher and then see PW2 during her Year 13 Mathematics class. PW2 said that 15 minutes during her class, KLM came into her class, and she asked KLM whether she wants to see her in class or elsewhere, to which KLM responded that she wanted to see PW2 privately elsewhere. PW2 and KLM then went outside and sat on a bench, and then KLM began telling PW2 that she is being harassed by three boys in the village, two of whom are in Suva and one remain in the village. KLM then asked PW2 that if a boy and a girl are having intercourse will the semen come out from the man, and how would she know if she is pregnant. PW2 then explained to KLM that if her menses stop then there is a possibility that she is pregnant, and PW2 then asked KLM if her menses that month had arrived, to which KLM said “Yes”. PW2 then asked KLM as to what happened to her, to which KLM responded that she was in a house in the village in the weekend and the owner of the house told them to go to the kitchen and talk there. KLM said that it was on a Saturday, and while they were talking, a man approached them and this particular man was telling her that he wants to have intercourse with her and signaling he will teach her how to do it. KLM then went outside to the man, and when she was coming back to where they were talking, the man locked her, took off her underwear, told her to turn around, and then the man entered her from behind while she was bracing on the wall. Straight after that KLM went home, and then on Sunday while KLM was at home she was scared of what had happened and got no one to talk about what had happened to her that Saturday. After hearing KLM’s story, PW2 then told KLM to return to her form, and PW2 went to inform the school principal Mrs. Nasedra of what had happened to KLM. Principal Mrs. Nasedra then instructed PW2 to take KLM to the Health Center and see Dr. Biau. PW2 then took KLM to the Health Center and saw Dr. Biau, and thereafter Dr. Biau called the principal and told her for KLM to be taken to her parents. PW2, principal Mrs. Nasedra and Dr. Biau took KLM to her home at Nawaisomo village, and informed KLM’s parents of what had happened to KLM. Dr. Biau also informed KLM’s parents of the relevant procedure and asked for their consent. Thereafter Dr. Biau, KLM and KLM’s mother went to Navua to report the matter to the police at the Navua police station.

Rape sentencing analysis

3. In this case, Rape is contrary to section 207(1) & (2)(a) of the Crimes Act 2009, and the maximum penalty is life imprisonment.
   
4. The sentencing tariff for rape of a child including persons under 18 years is 11 to 20 years imprisonment according to Aitcheson v State [2018] FJSC 29; CAV0012.2018 (2 November 2018), and at paragraphs 24 – 25, the Supreme Court held:
   

[24] The increasing prevalence of these crimes, crimes characterised by disturbing aggravating circumstances, means the court must consider widening the tariff for rape against children. It will be for judges to exercise discretion taking into account the age group of these child victims. I do not for myself believe that judicial discretion should be shackled. But it is obvious to state that crimes like these on the youngest children are the most abhorrent.

[25] The tariff previously set in Raj v The State [2014] FJSC 12; CAV0003.2014 (20^th August 2014) should now be between 11 – 20 years imprisonment. Much will depend upon the aggravating and mitigating circumstances, considerations of remorse, early pleas, and finally time spent on remand awaiting trial for the final sentence outcome. The increased tariff represents the denunciation of the courts in the strongest terms.

5. Furthermore, in Ram v State [2015] FJSC 26; CAV12.2015 (23 October 2015), at paragraphs 25 – 26, the Supreme Court inter alia provided a non-exhaustive list of factors to be considered by the court when sentencing a child rapist:
   

[25] In this case we are informed of pain having been caused to the 9 year old girl, but not as to whether she had required any medical treatment thereafter or whether she had suffered any psychological distress. Courts will be wise therefore to tread carefully before downgrading the type of penetration suffered, and instead to focus on the overall impact on the victim. The real consideration is, whatever the intruding object used, how horrific were the overall circumstances of the crime to the victim.

[26] Factors to be considered in such cases could be:

(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 the 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 present;
(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.

6. Given the sentencing tariff of 11 to 20 years imprisonment for child rape, for this instant, I choose a starting point of 11 years imprisonment.
   
7. The starting point of 11 years is enhanced by 5 years due to the following aggravating factors, bearing in mind the list of factors provided by the Supreme Court in Ram v State (supra):
   
   1. The accused raped KLM who is his 15 year old cousin-sister by intentionally penetrating KLM’s vagina with his penis without KLM’s consent.
   2. The accused had badgered KLM and eventually raped her knowing full well that KLM was not consenting and wanted to leave Vanuadina house to return to her home named Bolatagane.
   100. The accused deliberately and opportunistically raped KLM in Vanuadina house located adjacent to KLM’s house named Bolatagane in Nawaisomo village on the island of Beqa, the very place where KLM must find solace, remain safe, secure and shielded from all forms of abuse, sexual or otherwise.
   4. This was an incestuous and heinous rape of a vulnerable 15 year old young girl, and blatant betrayal of trust by the accused who is a 32 year old adult deemed to uphold good morals and values, and protect vulnerable young girls from being raped and sexually abused.
   5. KLM has undoubtedly sustained emotional and psychological trauma as consequence of being raped by the accused. The Supreme Court in Aitcheson v State (supra) at paragraph 72 held, ‘[72] [u]ndoubtedly it has been accepted by the society that rape is the most serious offence that could be committed on a woman. Further it is said that; “A murderer destroys the physical body of his victim; a rapist degrades the very soul of a helpless female.” In KLM’s Victim Impact Statement – Emotional & Psychological Harm, she clearly noted as follows:
      

Firstly I did not accept that crime to be done to me by one of my own relative and blood related.

I did not like what has been done to me.

That incident has affected the way I see my male colleagues and other young boys in the village since at times, I can feel that they are talking about me and look down on me which hurts me.

At times, I also feel bad when I see the way my relatives are looking at me whenever I wanted to join some of my friends, but I felt that I am out of place and it has affected my relationship with some of my friends and relatives.

It has affected my school work when at times the incident is replayed in my mind and I cannot concentrate well in class. I sometimes did not feel like going to school, but my parents would encourage me to go to school. It has been hard for me.

I did attend a counselling session at MSP after my medical examination with police and my mother.

6. Prevalence of the offence of child rape and a scourge and menace to the whole society compelling the need for deterrence.
   

8. The 16 years is reduced by 3 years due to the mitigating factors considering that the accused has no prior conviction, 32 years old, married with 4 children aged 9, 7, 5, and 3, subsistence farmer and fisherman earning approximately $100 per week, thus arriving at the interim custodial term of 13 years.
   

Time spent in custody

9. Of the 13 years imprisonment, a further deduction of 3 months 11 days is made for time spent in custody pursuant to section 24 of the Sentencing and Penalties Act 2009, thus arriving at the custodial term of 12 years 8 months 19 days.
   
10. Therefore, the head sentence for Count 1 – Rape is 12 years 8 months 19 days.
    

Non-parole period

11. As for the non-parole period, based on section 18 of the Sentencing and Penalties Act 2009 and the Supreme Court decision in Timo v State [2019] FJSC 22; CAV0022.2018 (30 August 2019), I have decided to fix a non-parole period of 11 years imprisonment for the head sentence of 12 years 8 months 19 days imprisonment.
    

Conclusion

12. Sevesi Vatudau stands convicted of the offence of Rape in the Information by the Director of Public Prosecutions, and sentenced to 12 years 8 months 19 days imprisonment, with the non-parole period of 11 years imprisonment.
    
13. Thirty (30) days to appeal to the Fiji Court of Appeal.
    

Hon. Justice P. K. Bulamainaivalu
Puisne Judge

At Suva
15 October 2024

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