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State v Takala [1995] FJHC 33; Hac0002t.1995b (10 February 1995)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

MISC.CRIMINAL CASE NO:0002 OF 1995
(Magistrates Court Savusavu: Crim.Case No: 285/91)

Between:

STATE

- v -

SITIVENI TAKALA

Ms. Laisa Laveti for the State.
Accused in Person.

SENTENCE AND SENTENCING REMARKS

On 4 November 1991 you pleaded not guilty to unlawful carnal knowledge of a girl namely MARIA IOSEFO without her consent contrary to section 149 and 150 of the Penal Code.

After trial, the learned Magistrate in his judgment delivered on 4 November 1994 found you guilty of the offence of rape and convicted you.

On 3 January 1995 when you appeared before the learned Magistrate the Court was informed that you were a first offender; you then spoke in mitigation saying that "after the last adjournment of this case the victim's father had gone to Police Station to have the case withdrawn. I am more involved in church activity. I was supposed to travel to Suva".

The learned Magistrate then noted that: "Sentence: the accused has raped a eleven (11) year old girl and in my view my powers are not sufficient to punish him properly. Accused is referred to High Court for sentencing under Section 222 of the Criminal Procedure Code".

The said section 222 (1) provides, inter alia, as follows:-

"222.-(1) Where a person, being not less than seventeen years of age, is tried by a resident magistrate for any offence, and such person is convicted by such magistrate of that offence, or of any other offence of which he is liable to conviction under the provisions of this Code then, if, on obtaining information as to his character and antecedents, the magistrate is of opinion that they are such that greater punishment should be inflicted in respect of the offence that the magistrate has power to inflict, the magistrate may, in lieu of dealing with him in any manner in which the magistrate has power to deal with him, commit him in custody or on bail to the Supreme Court for sentence in accordance with the following provisions of this section."

Although your antecedents, referred to under the said section was not before the Magistrate's Court, it was however handed to court on the hearing for sentence in this court. The learned Magistrate has though given his reason for referring to High Court for sentencing.

I find that it was quite proper for him to remand you to this Court for sentence.

THE FACTS:

The facts of this case can be briefly stated and I can do no better than repeat what the learned Magistrate said on page 1 of his judgment in the Record (on page 23) which sets out the salient facts and the circumstances surrounding the offence. It is as follows: -

"The accused is charged with having had carnal knowledge of a girl name Maria Josepho without her consent on the 19th day of September 1991 at Naweni.

Maria Josepho in her evidence stated that she is the daughter of Manoa Raika and Maria Dimotu born on 18/3/1980. In 1991 she had been in Class V. She knows Sitiveni Takala who is her father's elder brother's son.

On a day in March 1991 when she was alone at home the accused had come and asked her to go with him and have a bath in the creek. She went but returned as the creek was dirty.

On 31/1/91 which was a Sunday she had met the accused on her way home. He had shown her some money and invited her to go to the bush with him. She did not agree and he had pulled her dress. The dress was torn and she told her mother. Her father and mother went to his parents and reported the matter. They had then visited her parents with some yaqona.

On 19/9/1991 she had gone to school and come home for lunch. When she was washing dishes the accused had come and put his hand on her shoulder and dragged her towards the bush. Accused wore a pair of shorts with a towel round his neck. He put the towel in her mouth and dragged her. She could not yell and no one was around. He took her under a vesi tree. There was a sack. He spread the sack on the ground. He took out his pants. He took off her panty, came on top of her and had sex with her. She saw his erected penis. He asked her not to tell anyone. She felt pain and became unconscious later. When she regained her consciousness he took her home and gave some money. She did not take the money and the accused went away.

Blood was coming out of her private parts. She had a bath and went to school. She did not tell anyone as she was frightened. Next day she fell sick and was sick for one week. When she was sick she could not keep standing for more than 5 minutes.

Her mother had asked her to go to the dispensary. She went and on her return told her mother what had happened. Then she came to the hospital with her mother. She was examined by a doctor. She told the doctor what had happened. They came to the police station when she made a statement".

PRIOR CONVICTION

You have no previous convictions.

YOUR BACKGROUND

It is stated in your Antecedent Report handed to Court and which is as follows:-

"REPORT RELATIVE TO ANTECEDENT OF:-

FULL NAME : SITIVENI TAKALA

FATHERS NAME : AKILIO SILA

MOTHERS NAME : MARISELA TANOA

DATE OF BIRTH : 24TH JULY 1967

PLACE OF BIRTH : NAWENI VILLAGE CAKAUDROVE

OCCUPATION : UNEMPLOYED

MARITAL STATUS : SINGLE

GENERAL BACKGROUND

1. SITIVENI TAKALA IS 27YRS OF AGE AND HE IS THE SECOND ELDEST SON OF AKILIO SILA AND MARISELA TANOA AND FIFTH IN A FAMILY OF FOUR BOYS AND FIVE GIRLS.
   
2. HE WAS BORN AT HIS HOME VILLAGE AND STARTED HIS PRIMARY EDUCATION FROM CLASS 1 - 8 AT NAWENI DISTRICT SCHOOL. AFTER COMPLETING HIS PRIMARY EDUCATION HE ATTENDED ST.BEDES COLLEGE IN SAVUSAVU AND IN 1983 HE SET AND PASSED HIS FIJI JUNIOR CERTIFICATE EXAMINATION. THE FOLLOWING YEAR 1984 HE DID NOT COMPLETE HIS FIFTH GRADE OR FORM FIVE AND STAYED HOME.
   
3. FROM 1985 TO 1989 HE DID NOT GO BACK TO SCHOOL AND STAYED HOME AS A VILLAGE. IN 1990 HE ATTENDED THE VATUVONU VOCATIONAL CENTRE IN BUCA BAY AN INSTITUTION JOINTLY RUN BY THE GOVERNMENT AND THE SEVENTH DAY ADVENTIST CHURCH. ON 29.11.91 HE OBTAINED A TWO YEAR CERTIFICATE IN CARPENTRY AND JOINERY AND IT WAS IN THIS SAME YEAR HE COMMITTED THIS OFFENCE. HE WAS THAN CHARGE AND FOR SEVERAL TIMES HE JUMPED BAIL DURING COURT HEARING UNTIL HE WAS FINALLY ARRESTED THIS YEAR 1995.
   
4. HE IS A LONER AND DOES NOT ASSOCIATE MUCH WITH THE REST OF THE VILLAGERS. HE IS A FIRST OFFENDER".
   

Now before me you are asking the Court to show leniency to you in sentencing.

The offence of rape is increasing at a rapid rate and this has been so far some time now. It is a serious offence and carries a maximum sentence of life imprisonment.

Time has come for the Courts to set the pace so that our girls and women are able to move about either at home or in public places without fear of being molested by people like you.

The Fiji Court of Appeal has set the "starting point" for sentencing at seven years "without aggravating or mitigating features" in MOHAMMED KASIM and THE STATE (Civ. App. No. 21 of 1993 FCA) where it is stated:

"While it is undoubted that the gravity of rape cases will differ widely depending on all the circumstances, we think the time has come for this Court to give a clear guidance to the Courts in Fiji generally on this matter. We consider that in any rape case without aggravating or mitigating features the starting point for sentencing an adult should be a term of imprisonment of seven years. It must be recognized by the Courts that the crime of rape has become altogether too frequent and that the sentences imposed by the Courts for that crime must more nearly reflect the understandable public outrage. We must stress, however, that the particular circumstances of a case will mean that there are cases where the proper sentence may be substantially higher or substantially lower than that starting point".

I have no sympathy for people like you who commit such offences. It appears that these days the only way to deter others from committing this type of offence is to inflict adequate sentences.

The fundamental purpose of the criminal law is to protect the community. This can be done by making the punishment fit the offence and the offender thereby promoting respect in the community for the justice of the criminal law. Hence the need for the courts to have regard to the need for general deterrence.

The offence that you have committed and for which you stand convicted by the learned Magistrate is so heinous that the fact that the crime was a first offence or that you had not been to prison before are of little relevance as the guidelines in KASIM (supra) indicate.

You have by your act ruined the life of this 11½ year old victim who is also your cousin. She needed your protection and least expected you to stoop so low and intrude into her privacy. You had been following her for sometime before the offence. You entered her home and dragged her into the bush after putting a towel in her mouth so that she could not yell. You worked out your plan of action and carried it out successfully. The victim has been in ill-health for sometime since, and the medical report states that this could be the result of "psychological trauma and/or sexually transmitted disease".

Looking at the circumstances surrounding this offence involving a girl of such tender age you qualify to be put away from society for a long time.

With the rapid increase in the offence of rape I echo the remarks (how true they are even today) of GRANT CJ. in REGINAM v PETERO RAVUCI Review No. 13 of 1977 in the case of alleged rape of an 8½ year old girl when he said:-

".....in the circumstance therefore it is essential that the Courts provide a real deterrent otherwise rape will continue to menace the women of Fiji. In R. v RINO BANATI (Review No. 47 of 1976), this Court stated that "it is high time that Magistrates gave serious consideration to the exercise of their full powers in appropriate cases", and I repeat this with emphasis".

Today we have KASIM (supra) as a guide in sentencing in addition to the powers that Magistrates have under the Penal Code.

In your case bearing in mind all the circumstances of this case and much more so the tender age of the victim who is your cousin, the fact that there are no mitigating factors and the after effects on her health of the offence committed, the sentence of this Court will be eight (8) years imprisonment. I further order that you suffer corporal punishment by being given four (4) strokes of the birch

Right of Appeal.

D PATHIK
JUDGE

AT LABASA
10 February 1995.

HAC0002T.95B