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State v S B N [2011] FJHC 36; HAC83.2010 (8 February 2011)

IN THE HIGH COURT OF FIJI
AT SUVA

CRIMINAL JURISDICTION

Criminal Case No. HAC 83 of 2010

BETWEEN:

THE STATE

AND:

S.B.N

Counsel : Mr. K. Waqavonovono for the State
Accused in Person

Date of Hearing : 14th and 15th December 2010
Date of Submission : 31st January 2011
Date of Sentence : 08th February 2011

SENTENCE

1. On the request of the State Counsel this Court has issued a name and identity suppression order therefore the name of the victim and the accused are suppressed herewith.
   
2. Director of Public Prosecution had preferred the following charge against you.
   

"S.B.N is charged with the following offence:

FIRST COUNT

Statement of Offence

RAPE: Contrary to section 207(1)(2)(c) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

S.B.N on the 5th day of April 2010, at Lami, in the Central Division, penetrated the mouth of S.M with his penis without her consent."

3. After the trial the Assessors unanimously found you guilty and the Court also confirmed this verdict.
   
4. Now I consider the relevant law for sentencing. Section 207(1)(2)(c) of the Crimes Decree No. 44 of 2009 states that:
   

"Any person rapes another person if the person penetrates the mouth of the other person to any extent with the person's penis without the other persons consent." Penalty – Imprisonment for life.

5. In United Kingdom Section 5(1)(2) of the Sexual Offences Act 2003 states:
   

"(1) A person commits an offence if-

(a) he intentionally penetrates the vagina, anus or mouth of another person with his penis, and

(b) the other person is under 13.

(2) A person guilty of an offence under this section is liable, on

conviction on indictment, to imprisonment for life."

6. You have inserted your penis into the mouth of the victim who was a 3 year old girl. I consider this is as an absolute rape because the law defines it as Rape.
   
7. Now I consider the tariff for the offence of Rape of a child is between 10 to 16 years imprisonment. In William Christopher Millbery & two others vs. R (2002) (EWCA Crim. 2891 (09 December 2002) the Court held
   

"22. The Panel confirms the 15 years and upwards starting point for a campaign of rape. This is recommended where the offender has repeatedly raped the same victim over a course of time as well as for those cases involving multiple victims."

8. The guideline case for Rape in the United Kingdom is R.v.Millberry [2003] 2 Cr. App. R. (S) 31. It basically sets out the approach Courts in the United Kingdom take when sentencing for Rape. In page 6 of the judgment paragraph 20 reads:
   

The 8 Year Starting Point

This is recommended by the Panel after a contested trial where there is present any of the following features (the first three of which were identified in Billam as attracting the 8 year starting point).

9. In Mohammed Kasim v The State (unreported) Fiji Court of Appeal Cr. Case No. 14 of 1993; 27 May 1994 the Court of Appeal observed (at p.6):
   

"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."

10. In Lasaro Turagabeci (supra) Pain J. said:
    

"The Courts made it clear that rapists will be dealt with severely. Rape is generally regarded as one of the gravest sexual offences. It violates and degrades a fellow human being. The physical and emotional consequences to the victim are likely to be severe. The Courts must protect women from such degradation and trauma. The increasing prevalence of such offending in the community calls for deterrent sentences."

11. In a case with some similarities to this case Shameem J in The State v Navauniani Koroi (unreported) Cr. App. Case No. HAA0050.2002S arrived at a sentence of 12 years and explained:
    

"Taking the 7 years as the starting point, I increase the term by two years for the young age of the complainant, and a further three years for the fact that she is your daughter. I add a further year for the resulting pregnancy. I reduce the term by one year for the guilty plea and other mitigation..."

12. In The State v Peniasi Senikarawa (unreported) High Court Suva Cr. Case HAC0017.2002S; 20 May 2003 the Accused was sentenced to 11 years imprisonment. Shameem J started on the tariff at 7 years. The mitigation was that the Accused had a good character, was hardworking and struggling to raise his son single handed. But for being in breach of his position of trust to his 14 year old step-daughter, for the beatings he gave her, and for the fact that she had to give evidence twice, the court imposed a further 4 years.
    
13. In Inoke Buli v The State (unreported) Court of Appeal, Fiji Cr. App No. AAU0003.00S; 24 May 2001 the Court of Appeal approved a sentence of 12 years on an Accused for rape of his mentally retarded step-daughter. There was both breach of trust and the Accused had a prior conviction for rape as aggravating factors. The force however appeared to be minimal.
    
14. State v Talenasila Criminal Case No. HAC 11 of 2010 – The court held that rape and indecent assault are abominable and are becoming too common in Fiji. The Authorities state that rape of children must incur a starting point of 10 years. The accused was sentenced to 14 years imprisonment for the count of rape and 4 years imprisonment for each count of indecent assault. The sentences for the two counts of indecent assault were to be served concurrently but pursuant to Section 17 of the Sentencing and Penalties Decree 2009, the 2 years of those sentences was to be served consecutively to the rape sentence. The total period of imprisonment therefore was a term of 16 years imprisonment.
    
15. State v Sailosi Selebula [2010] HAC 148 of 2010 – The Court held that a single count of rape should properly reflect the complete abhorrence that members of the public feel towards adults who abuse young children in their case. The Court stated that a sentence in the region of 10 years would be appropriate. The accused was sentenced to 15 years imprisonment reduced to 14 years for good character. A non parole period of 11 years was imposed.
    
16. In R v M V [1998] VSCA 68 (7 October 1998) the Supreme Court of Victoria – Court of Appeal held for the count of oral rape that the accused be sentenced to 6 years. We wish to draw attention to the fact here that the complainant was an adult and also the accused had been charged for other offences in this case. But the seriousness of the count of oral rape still reflects the sentence given and in the case before the Court this involves a child.
    
17. Further the Court observed in Millbery v R (supra):
    

"60....we note that the Court's prior to the guideline were regarding relationship rape as serious and deserving heavy sentence."

18. Considering all I commence your sentence at 13 years imprisonment.
    
19. Now I consider the aggravating factors.
    
    1. The victim was only 3 years old girl.
    2. You are 47 years that means 44 years older than the victim.
    100. You are the uncle of the victim.
    4. Gross breach of trust as of an uncle to the victim.
       

Considering all aggravating factors I increase 5 years. Now your sentence is 18
years.

20. I now consider the mitigating circumstances.
    
    1. You are the breadwinner for your family.
    2. You are looking after your extended family.
    100. Your period in remand.
         

Considering your mitigating circumstances I reduce 3 years from your sentence. Now your sentence is 15 years.

21. Considering Section 18 (1) of the Sentencing and Penalties Decree I am imposing 11 years as non-parole period.
    
22. You have 30 days to appeal to the Court of Appeal.
    

S Thurairaja
Judge

At Suva

Solicitors
Office of the Director of Public Prosecution for State
Accused in Person