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State v Tiqatabua [2013] FJMC 123; Criminal Case 174.11 (25 February 2013)

IN THE MAGISTRATES COURT
AT SUVA

Criminal Case No. 174/2011

THE STATE

–v-

PITA TIQATABUA

For Prosecutor: Ms. Kant
For Accused: Present. Mr. Romanu

SENTENCE

1. Mr. Pita Tiqatabua, stands convicted before this court for the following four counts of Attempted Rape contrary to Section 151 of the Penal Code, Cap 17 and Section 208 of the Crimes Decree No. 44 of 2009. The particulars of the offences are as follows;
   

2. It was only after a full Hearing, listening to all the prosecution witnesses, as well as the accused, this court deliberated that Mr. Pita Tiqatabua is guilty of all 4 counts of Attempted Rape. The detailed analysis of evidence is being reflected in the Judgment, pronounced in open court on 14th January 2013.
   
3. The maximum penalty for the offence of Attempted Rape contrary to Section 151 of the Penal Code and Section 208 of the Crimes Decree attract a maximum period of 10 years imprisonment. It was decided in Jolame Nokonokomoli v State HAA 23 of 2009 that the tariff for the offence of Attempted Rape should be between 12 months to 5 years imprisonment. In the case of Aunima v The State [2001] FJHC 294; [2001] 1FLR 213 dated 27th June 2001 Shameem J re-confirmed the tariff for the offence of Attempted Rape is to lie between 12 months to 5 years imprisonment.
   
4. Keeping the legal precedents in mind I take a starting point of 42 months of imprisonment (3 ½ years) for each count.
   
5. It was revealed in the course of the Hearing that the accused is a relative of the victim as the victim calls the accused "grandfather". Both parties were living in the same settlement in close by barracks. The accused was almost 40 years of age while the victim was 12 years at the time of the commission of the offence. As the learned Prosecutor correctly pointed out, the conduct of the accused is a clear reflection of gross breach of trust where a civilized society would not anticipate such behaviour from a person with this age difference while being related to the victim. It was quite evident that the accused was using his authority of age and relationship to get the control over the victim. Being 12 years of age, it is obvious that the victim is so vulnerable. At the same time, I note that the alleged offences had continued for almost 1 year on four different occasions and that is a clear indication of as to how the accused maximized the opportunity of abusing the victim whenever the opportunity comes in his way. Until the accused and the victim were caught red-handed by another child in close vicinity (Eparama), the victim was kept in the dark and in fear not to divulge her bitter experiences to anybody because of the authority and the force of the accused. Adding salt to the injury, it makes things worse when the sexual activities were tried to be compensated with some "Sun-Pops" or a $1.00 coin or a packet of noodles. The above stated factors will aggravate the background with which the accused is being charged with.
   
6. In mitigation the following grounds were urged by the accused;
   
   • * Apologizes to court.
   • * Remorseful for his actions and deeds.
   • * States that these offences were totally out of character.
   • * Remand Centre has been a very salutary lesson and he is determined to lead a new life away from crime.
   • * Low level of violence used with no injuries to the victim, though there were threats.
     
7. Accused is a security officer of 42 years of age. He is married with 4 children and his schooling children and elderly parents are dependent on him. It is rather interesting to note that though the accused who initially challenged the charges leveled against him and went for a full Hearing, had taken a topsy-turvy by admitting himself in mitigation that he is remorseful for his actions and deeds, the offences are totally out of character, he learnt his lessons and determined to lead a crime free life. Paster Leveni Sovatavua of Apostle Church in Nabua was also called on behalf of the "accused to offer character evidence". Pastor testified to the effect that the accused was an honest man while he was working with him in church and he was surprised to hear about this case. But he admitted that he knows the victim girl also and he has not come across any of her dishonest acts as well. Since the court has already decided to place its reliance on the victim girl, upon listening to her testimony, I am not going to take into consideration what the Pastor said about the victim.
   
8. For all the above stated aggravating factors I add 12 months imprisonment to the starting point. Having considered the mitigatory factors, inclusive of the testimony of Pastor Leveni, I reduce 6 months form the total. You did not plead guilty to the charges without going for a Hearing. Therefore, you are not entitled to a reduction for an early guilty plea and on the other hand it's an indication of the "true colours" of your "remorse". The outcome of that was the victim being still a small girl coming to the witness box and recalling all her bitter experiences.
   
9. With the above mathematical arrangement, your final sentence remains at 48 months imprisonment for each count. As the case record reflects that you had been in remand at least since 24th of January 2011 to 8th of March 2011 in relation to this case and that is around 1 ½ months. Thus, I order that 1 ½ months be reduced from your sentence of 4 years imprisonment for each count and therefore it will come down to 3 years 10 months and 2 weeks imprisonment.
   
10. Further, I note that you have been in remand custody since 14th January 2013, the day this court pronounced your conviction. Hence, I order your sentence of 3 years 10 months and 2 weeks for each count to be commenced from 14th of January 2013.
    
11. Finally, I order the sentence of 3 years 10 months and 2 weeks for each count to run concurrently from 14th of January 2013.
    

. . . . . . . . . . . . . . . . . .
Mr. Janaka P. Bandara
Resident Magistrate, Suva

Dated: 25th February 2013