IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal Case No 158/09

BETWEEN

THE STATE

AND

1.	RUSIATE VANAVANA F/N Rusiate Vanavana (43years)
2.	RUSIATE VANAVANA F/N Ilai Nakera (20 years)

SENTENCE

1.	You, Rusaite Vanavana (43 years) and Rusiate Vanavana (20 years) are to be sentenced upon pleading guilty to the charge of Defilement of girl between thirteen and sixteen years of age contrary to Section 156(1)(a) of the Penal Code.

2.	The maximum punishment for this offence is 10 years imprisonment. The tariff for this offence is, from a suspended sentence to four years imprisonment. ( State V Etonia Kabaura [2010] FJHC 280 )

3.	Although both of you are charged in one case and in the same count, it appears that each of you have committed the offence independently and separately from each other. The only common elements are that both of you committed the offence during the same month and on the same victim. 

4.	It was revealed that sometime in January 2009 You, Rusiate Vanavana f/n Ilai Nakera (20) approached the Complainant while she was bathing in the river. You had a conversation with her regarding her schooling and you went into a sugar cane field with her. You started having sexual intercourse with her. Whilst having intercourse you and the Complainant heard a neighbour calling the Complainant. You stopped what you were doing and went away. You were caution interviewed on the 10th March 2009 and you admitted the offence. It appears that you and the Complainant attended the same school and you are known to the Complainant.

5.	After the above incident, and in the same month when the Complainant was bathing in the river with some other youths, you, Rusiate Vanavana f/n Rusiate Vanavana (40) told the other youths to go home. They left the Complainant in the river alone with you. You called the Complainant to you and she went over and asked what you wanted. You pulled down her blue shorts and dark blue underwear and had sexual intercourse with her on the riverbank. After that you told the Complainant not to tell the incident to anyone.

6.	It appears that the victim was 15 years and 8 months at the time of these two incidents. You, Rusiate Vanavana f/n Rusiate Vanavana said now you are 43 years. It appears that at the time of the incident there was an age gap of 25 years between you and the victim. I consider the age gap between you and the victim as an aggravating factor. 

7.	You Rusiate Vanavana f/n Ilai Nakera was 19 years at the time of the commission of this incident. There seems to be no virtuous friendship between the victim and any one of you. 

8.	These two incidents appear to be nothing less than sheer sexual exploitation of a young girl. The Courts have always been stern in cases where there is no virtuous friendship between the offender and the victim and where the age gap between the offender and the victim is high. Further it should be noted that in such instances the precedence is to impose custodial sentences. 

9.	In mitigation the learned Counsel for Rusiate Vanavana f/n Rusiate Vanavana (43) informed Court that you are married with three children. He said that two of your children go to school and you are separated from your wife as a result of this case. You are employed as a Mill operator. The learned Counsel said if you go to jail your children will be helpless as you are the sole breadwinner. He asked for a non custodial sentence.

10.	On behalf of Rusaite Vanavana f/n Ilai Nakera, (20) the learned Counsel said that you are a first year student of Fiji National University in civil engineering. He said your whole future will go down if the Court would be harsh. He asked for a non custodial sentence.

11.	The learned Counsel informed Court in mitigation on behalf of both of you that the victim was known for sexual affairs with other people. It should be noted that presence of consent is not an element of defilement. Besides it is not an excuse to plead that one has committed a crime just because the others also commit such offences. The law condemns this kind of grave crimes against vulnerable members of the society. Further the Courts have a primary obligation to instil into the minds of the members of the society, that defilement of young girls below the age of 16 is a pervert and a criminal action, which the Court and the society strongly denounce. 

12.	In the foregoing circumstances I pick my starting point as 2 years for both of you. 

13.	For the aggravating factors I enhance the sentence for Rusiate Vanavana f/n Rusiate Vanavana (43) by 12 months. For the mitigatory circumstances I reduce the sentence by 6 months. 

14.	I do not find aggravating factors, apart from the gravity of the offence for Rusaite Vanavana f/n Ilai Nakera, (20). You are still at very young age and it was informed that you are an university student. For the mitigatory circumstances I reduce your sentence by 9 months. 

15.	Accordingly I impose the sentences on each of you in the following way;

(i)	Two years and six months imprisonment on Rusiate Vanavana f/n Rusiate Vanavana (43)

(ii)	One year and three months on Rusaite Vanavana f/n Ilai Nakera, (20).

16.	The Court is mindful, that at the same time it imposes appropriate sentences on offenders, it is equally important to promote and encourage offenders to correct and rehabilitate themselves. Therefore the Court has to leave some room for the offenders to reap the fruits of genuine and effective correction and rehabilitation. Having taken into account the different circumstances involving each of you I set the parole periods in the following way;

(i)	You, Rusiate Vanavana f/n Rusiate Vanavana (43) are eligible for parole after 12 months.

(ii)	You, Rusaite Vanavana f/n Ilai Nakera, (20) are eligible for parole after 6 months.

28 days to appeal

Rangajeeva Wimalasena
Resident Magistrate

Lautoka

28.03.2011