Magistrates Court of Fiji

The second count of Defilement of a young person between the ages of 13 and 16 years of age attracts a maximum sentence of 10 years imprisonment.

In the Vetaukula case that has been cited by both counsel, Justice Gounder stated as follows: -

“The maximum penalty for defilement s 10 yearriimpment. The tare tariff is between suspended sentences to 4 yimprisonment (Elia>Elia Donumainasava v State [2001] HAA 32/01 May 20Susp0Suspe#160;sentences are appropriate in cases of n of non-exon-exploitative relationship between persons of similar age. Custodial sentence0;are apprte in casn cases of sexual exploitation of youngeounger girls by old men or men who hold positions of authority over the girls."

In sentencing you the Sentencing and Penalties Decree requires this Court to considonsider the following: -

"(a) the maximum penalty prescribed for the offence;

(b) current sentencing practice and the terms of any applicable guideline judgment;

(c)the nature and gravity of the particular offence;

(d)the offender's culpability and degree of responsibility for the offence;

(e) the impact of the offence on any victim of the offence and the injury, loss or damage resulting from the offence;

(f) whether the offender pleaded guilty to the offence, and if so, the stage in the proceedings at which the offender did so or indicated an intention to do so;

(g)the conduct of the offender during the trial as an indication of remorse or the lack of remorse;

(h) any action taken by the offender to make restitution for the injury, loss or damage arising from the offence, including his or her willingness to comply with any order for restitution that a court may consider under this Decree;

(i)the offender's previous character;

(j) the presence of any aggravating or mitigating factor concerning the offender or any other circumstance relevant to the commission of the offence; and

(k) any matter stated in this Decree as being grounds for applying a particular sentencing option."

The facts as they have been established are very troubling for the following reasons which in the Court's view aggravate your offending: -

(i) You pursued the victim, coming to her school persistently and offering her gifts both monetary and in the form of food – actions which point to a phenomenon which is known as grooming. You groomed the victim to achieve what you wanted which was to gain her trust and affection in order to have sexual intercourse with her.

(ii) You are now 52 years of age and in 2011 you were 48 years of age with the victim being 15 at the time. This 33 year age gap aggravates the offence as you were old enough to be her father and you were the adult in this "relationship" a term which I used advisedly in the context of this case. This constitutes a grave breach of trust on your part.

(iii) You now express remorse however you maintained a not guilty plea throughout and this remorse has only materialised after your conviction. The Court therefore has doubts on the genuineness of your remorse and this also aggravates the offence.

You are a person of previous good character with an unblemished record for 52 years. This previous good conduct is a mitigating factor.

For the above reasons the only appropriate sentence for the offending in this case is a sentence of imprisonment. The offending lies at the median range for these types of offences as there was no force or coercion used. Both offences were committed as part of one transaction therefore you will receive concurrent sentences on each count.

For the first count the Court adopts a starting point of 18 months imprisonment and adds 6 months for the aggravating factors set out above. For your previous good conduct as a first offender, your sentence is reduced by 8 months.

For the first count of Abduction of a person under the age of 18 years with intention to have carnal knowledge – you are sentenced to 16 months imprisonment.

For the second count the Court adopts a starting point of 2 years imprisonment and adds 6 months for the aggravating factors set out above. For your previous good conduct your sentence is reduced by 10 months.

For the second count of Defilement of a young person between the ages of 13 and 16 years of age – you are sentenced to 20 months imprisonment to be served concurrently with the first count.
This leaves you with a total sentence of 20 months imprisonment, a sentence that is less than 2 years and which may be suspended in the appropriate circumstances as set out at section 26 (1) of the Sentencing and Penalties Decree.

The relevant section provides as follows: -

"Suspending imprisonment

26. — (1) On sentencing an offender to a term of imprisonment a court may make an order suspending, for a period specified by the court, the whole or part of the sentence, if it is satisfied that it is appropriate to do so in the circumstances."

In considering whether it is appropriate to suspend your sentence in this case the Court is guided by Justice Goundar's remarks in the case of State –v-Vetaukula as cited above.

His Lordship in considering whether a suspended sentence was appropriate where the offender was the village headman and the age gap was 6 years, stated as follows: -

"[8] I now consider whether your sentence s be sdepended. When the sehe sexual act occurred, the age gap between you and the complainant was 6 years. The age gap between you and the complainant, and your authority as the turaga-ni-koro gave rise to an exploitative environment for the offence to take place. The position of turaga-ni-koro is an integral part of the communal living in Fiji. The person who holds such a position in a village is responsible for the daily administration of the village. The position is a powerful one because as the headman the turaga-ni-koro can always assert pressure on the occupants of the village to comply with his directives. At times, the occupants may feel obliged to comply with the turaga-ni-koro's directives because of fear of repercussion that may arise if his directives are ignored. These factors can create an exploitative environment for women and girls.

[9] Younger girls who have entered puberty and who are experiencing social and hormonal changes are more vulnerable to sexual advances by men with authority over them. The courts have a duty to protect the young girls from any form of sexual exploitation. In cases of sexual exploitation of young girls, the primary purpose of the sentence is al deterrence. Rehabilitbilitation of the offender is a secondary purpose. For these reasons, I am not convinced that a suspended sen will deter s who swho similar position of authority from sexually expl exploitinoiting younger girls. Your sentence will n suspended."

I

In case although you were initially strangers to eato each other, nevertheless you held a posa position of authority over the victim an expl this position of authority to advance your aims aims and eand eventually succeeded on the 21st of May 2011.

His Lordship's comments at paragraph 9 above are applicable to this case. The focus of this sentence is deterrence and your rehabilitation is a secondary consideration. The Court is mindful of the fact that this custodial sentence is going to have a detrimental effect on your personal and family circumstances however you can blame no one else but yourself.

In the circumstances it is not appropriate to suspend your sentence.

Onisimo Batilada Tabuyaqona here is your sentence: -

1. For the first count of Abduction of a person under the age of 18 years with intention to have carnal knowledge – you are sentenced to 16 months imprisonment.
   
2. For the second count of Defilement of a young person between the ages of 13 and 16 years of age – you are sentenced to 20 months imprisonment to be served concurrently with the first count.
   
3. You are not eligible for parole until you have served at least 18 months of your sentence.
   

28 days to appeal

U. Ratuvili
Chief Magistrate

22nd June 2015