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State v Kabaura [2010] FJHC 280; HAC117.2010 (9 August 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC 117/10

STATE

V

ETONIA KABAURA

Hearing: 2nd August 2010
Sentence: 9th August 2010

Counsel: Mrs. N. Ratakele for State
Ms M. Savou for Accused

SENTENCE

[1] The accused is charged with the following offences:

First Count

(Representative Count)

Statement of Offence

Indecent Assault: Contrary to section 154(1) of the Penal Code, Cap 17.

Particulars of Offence

ETONIA KABAURA between the 1st day of January 2004 to the 31st of December 2004 at Levuka in the Eastern Division unlawfully and indecently assaulted a girl namely E. L. K.

Second Count

(Representative Count)

Statement of Offence

Rape: Contrary to section 149 & 150 of the Penal Code Cap 17.

Particulars of Offence

ETONIA KABAURA between the 1st day of December 2006 and the 31st of January 2007 at Levuka in the Eastern Division had unlawful carnal knowledge of a girl namely E. L. K, without her consent.

Third Count

(Representative Count)

Statement of Offence

Rape: Contrary to section 149 & 150 of the Penal Code Cap 17.

Particulars of Offence

ETONIA KABAURA between the 1st day of August 2008 and the 31st of August 2008 at Levuka in the Eastern Division had unlawful carnal knowledge of a girl namely E. L. K, without her consent.

[2] He pleads guilty to indecent assault on count 1 and to the offence of defilement contrary to section 156(1)(a) of the Penal Code on counts 2 and 3.

[3] A plea of guilty to an offence not charged in the information is permitted under section 218 of the Criminal Procedure Decree. Section 218 reads:

Where a prisoner is arraigned on an information for any offence, and can lawfully be convicted on the information of some other offence not charged in the information, he or she may plead not guilty of the offence charged in the information, but guilty to the other offence.

[4] The offence of defilement is defined by section 156 as follows:

(1) Any person who –

(a) unlawfully and carnally knows or attempts to have unlawful carnal knowledge of any girl being of or above the age of thirteen years and under the age of sixteen years;

[5] The State accepts the accused's guilty pleas to defilement on counts 2 and 3. Counsel for the State informs the court that the complainant's statement to the police support the accused's caution statement that the sexual intercourse between them were consensual. Since lack of consent is required to prove rape, and the evidence falls short of that requirement, the State accepts that the rape charges cannot be sustained on the facts. But lack of consent is not an element of defilement and if the complainant was below the age of 16 years at the time of sexual intercourse, the accused can be lawfully convicted of defilement.

[6] I find that the accused in this case can be lawfully convicted of defilement. The facts which the accused admits, disclose the complainant was below the age of 16 years when the first incident of sexual intercourse occurred and the accused knew that the complainant was under the age of consent.

[7] Count 2 covers a period between 1 December 2006 and 31 January 2007 while count 3 covers a period between 1 August 2008 and 31 August 2008. The complainant was born on 11 March 1992. During the period covered by count 2, the complainant was 14 years old, that is, under the age of 16 years. During the period covered by count 3, she was already 16 years old, and not under 16 years of age, as required for the offence of defilement. The plea of guilty on count 3, therefore, cannot be sustained on the facts.

[8] However, the charges are representative counts. Section 70(3) of the Criminal Procedure Decree provides for representative count in cases of sexual offences. Section 70(3) states:

When a person is charged with any offence of a sexual nature and the evidence points to more than one separate acts of sexual misconduct, it shall be sufficient to specify the dates between which the acts occurred in one count and the prosecution must prove that between the specified dates at least one act of a sexual nature occurred. In such a case the charge must specify in the statement of offence that the count is a representative count.

[9] Section 70(3) codifies the common law position on representative charge that was approved in Fiji in the case of Sikeli Koro v. State [2002] HAA0048/02L and applied in Dip Chand v. State [2008] HAC138/05L. When the prosecution alleges multiple incidents of sexual offence by charging an accused with a representative count, the court must be satisfied that at least one incident of sexual offence had occurred over the period covered by the charge to convict the accused.

[10] In the present case, I am satisfied on the facts that at least one incident of defilement had occurred during the period covered by count 2 when the accused had sexual intercourse with the complainant, knowing she was under the age of consent.

[11] For these reasons, I accept the guilty pleas on count 1 for indecent assault and on count 2 for defilement. The accused is convicted as follows:

[12] I dismiss count 3 on the ground that the facts do not disclose an offence.

[13] The offences on count 1 and 2 were committed in the village of Levuka, Nabukelevu, Kadavu where both the accused and the complainant lived. In 2004, the complainant was a primary school student and was in class 7. The accused invited the complainant in his house and offered her some food. While she was in his house, he fondled her breasts without her consent. Thereafter, the complainant returned to the accused's house on numerous occasions. On each occasion, the accused lured her by giving her money and gifts. From 2006, he started to have sexual intercourse with the complainant. The complainant was 14 years old at the time. She consented to sex. They had sexual intercourse on numerous occasions until 2008 when the complainant became pregnant and gave birth to a daughter who is now 1-year old.

[14] The maximum sentence prescribed for indecent assault is 5 years imprisonment. A range of factors are relevant in sentencing an offender for indecent assault. Shameem J in Rokota v. State Criminal Appeal No. HAA0068 of 2002 identified some of those factors after reviewing earlier cases, although the list is not exhaustive. Shameem J said:

"From these cases a number of principles emerge. Sentences for indecent assault range from 12 months imprisonment to 4 years. The gravity of the offence will determine the starting point for the sentence. The indecent assault of small children reflects on the gravity of the offence. The nature of the assault, whether it was penetrative, whether gratuitous violence was used, whether weapons or other implements were used and the length of time over which the assaults were perpetrated, all reflect on the gravity of the offence. Mitigating factors might be the previous good character of the accused, honest attempts to effect apology and reparation to the victim, and a prompt plea of guilty which saves the victim the trauma of giving evidence.

These are the general principles which affect sentencing under section 154 of the Penal Code. Generally, the sentence will fall within the tariff, although in particularly serious cases, a five year sentence may be appropriate. A non-custodial sentence will only be appropriate in cases where the ages of the victim and the accused are similar, and the assault of a non-penetrative and fleeting type. Because of the vast differences in different types of indecent assault, it is difficult to refer to any more specific guidelines than these."

[15] The maximum sentence prescribed for defilement of girl between 13 and 16 years of age is 10 years imprisonment. The tariff for this offence is from a suspended sentence to four years imprisonment; suspended sentences reserved for virtuous friendship offending while the higher side of the range is for offenders who are older and in position of trust with the victim (Etonia Rokowaqa v. State Criminal Appeal No. HAA37 of 2004); Elia Donumainasuva v. State Criminal Appeal No. HAA032 of 2001).

[16] At the time the accused committed the offences he was 58 years old. The complainant was 12 years old when she was indecently assaulted and 14 years when she was defiled by the accused. This is not a case of virtuous relationship to attract a suspended sentence. This is a case of sexual exploitation of a child by an older man, which the society disapproves. To denounce this kind of conduct, a custodial sentence is warranted.

[17] In mitigation, counsel for the accused submitted that the accused now is 64 years old. He never married. His brother offered a traditional apology to the complainant's family on behalf of the accused, but the apology was not accepted. The accused is remorseful.

[18] The mitigating factors are the early guilty pleas, co-operation with the police by admitting sexual intercourse, remorse and offer of traditional apology to the complainant's family, previous good character and the old age of the accused. The guilty pleas have not only saved court time and resources but have also relieved the complainant from giving evidence of sexual nature.

[19] The aggravating factors are the age difference between the complainant and the accused, the exploitation of the complainant by luring her with gifts and money over a period of time, the pregnancy of the complainant and the loss of schooling opportunities for her.

[20] The accused has spent 3 months in custody on remand which is taken into account.

[21] After taking into account the mitigating and aggravating factors and the remand period, the accused is sentenced to 12 months imprisonment for indecent assault on count 1 and 3 years imprisonment for defilement with a non-parole period of 2 years on count 2.

Daniel Goundar
JUDGE

At Suva
9th August 2010

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