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State v Tauvoli [2011] FJHC 216; HAC027.2011 (18 April 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 027 OF 2011

STATE

vs

MARIO TAUVOLI

Ms I. Whippy for the State
Accused in Person

Date of Hearing: 6 and 8 April 2011
Date of Sentence: 18 April 2011

SENTENCE
[Digital Rape]

[1] On the 6th April 2011, this accused entered a plea of guilty to a charge of rape of his fourteen year old step daughter by penetrating her vagina with his finger contrary to section 207(2)(b) of the Crimes Decree 2009.

[2] On the 8th April, he admitted a set of facts put to him and he was convicted.

FACTS

[3] On the 7th January 2011 at Meiganiah Back Road, Nadi the victim was in the house with friends when this accused who was sitting outside called her out. The girl went out and the accused grabbed her, kissed her and made her sit beside him. He pushed his hand into her panty trying to touch her genitals but the girl managed to escape and ran back into the house. A little later he called her to come out and take her baby sister who was with the accused. The victim came out again and as she approached, the accused put the baby down and pulled the victim to him. He pulled her towards a bush beside the house and pulled off the sarong she was wearing. He then pulled down her panty and started to fondle her genitalia. He inserted his finger into her vagina and kept it there for nearly 2 minutes. The victim screamed but he covered her mouth. The victim immediately told her mother and the matter was reported to the Police.

[4] Under the provisions of the Crimes Decree 2009, apart from the traditional elements of rape being penetration of a vagina with the penis, the definition has now been extended to include penetration of the vagina or anus with any other part of a persons body or with any thing; and obviously fingers along with toes and tongue can be the instruments of rape. The maximum penalty for the offence is life imprisonment and earlier authorities for rape will become apposite.

[5] Rape of children is a very serious offence indeed and it seems to be very prevalent in Fiji at the time. The legislation has dictated harsh penalties and the Courts are imposing those penalties in order to reflect society's abhorrence for such crimes. Our nation's children must be protected and they must be allowed to develop to sexual maturity unmolested. Psychologists tell us that the effect of sexual abuse on children in their later development is profound.

[6] It is now well settled that sentences for rape of children should be within the range of ten to fifteen years. This Court in State v M.D. (HAC 129 of 2010L) took a starting point of 15 years for a stepfather who had raped his 13 year old stepdaughter. The Fiji Court of Appeal in Drotini – AAU0001 of 2005 has upheld this range of sentences for rape of children.

[7] The accused is aged 42 and a cane cutter. He lived together with the victim, the victim's mother who is his wife and a new baby the issue of that union. When asked what he wanted to say in mitigation, he refused to say anything showing a total lack of remorse.

[8] I take a term of 12 years as my starting point for this offence. As the victim's stepfather, he is in a position of trust in the care and protection of the child, and his actions have breached that trust. For that aggravation I add four years to the sentence bringing it up to 16 years. The only mitigation available to the accused is his early plea of guilty. He does not have a clear record, having been convicted of a relatively minor offence in Nadi in 2005. He proffered nothing by way of mitigation and for his plea of guilty I deduct three years.

[9] The total term to be served by this accused is thirteen years and he will serve ten years before being eligible for parole.

Paul K. Madigan
JUDGE

At Lautoka
18 April 2011