Home | Databases | WorldLII | Search | Feedback High Court of Fiji

State v Tamanisau [2011] FJHC 752; HAC177.2010S (18 November 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 177 OF 2010S

STATE

vs

ISIKELI TAMANISAU

Counsels: Ms. S. Hamza and Ms. L. Latu for the State
Ms. P. Salele and Mr. V. Faktaufon for the Accused
Hearings: 31st October to 3rd November, 2011
Summing Up: 4th November, 2011
Judgment: 7th November, 2011
Sentence: 18th November, 2011

SENTENCE

1. After a four days trial, the three assessors unanimously found you guilty as charged, on two counts of "defiling a 15 years old female complainant", contrary to section 215 of the Crimes Decree 2009 (counts No.l and 2). The court agreed with the assessors, found you guilty as charged on counts No. 1 and 2 and convicted you accordingly.

2. The brief facts were as follows. You were 42 years old, married with 3 young children. From 1st February to 19th August, 2010, you resided with your wife and children at Tamole Settlement in Newtown. The 15 year old female complainant also resided with her parents and brothers, at the same settlement. It was said that her family's house was four footsteps away from yours, and she was related to your wife. You are a welder by profession, and worked with Pacific Energy Company, to earn your living. The female complainant stayed at home, and neither worked or went to school.

3. You bought yourself a motor vehicle in June 2010, and its registration number was FJ 792. It was said that you often gave the female complainant money, every now and then. On or about June 2010, you took the complainant in your car for a ride, after 10pm. You two drove around Vatuwaqa, Laucala, Newtown and to Namara Settlement. At Namara Settlement, you had sexual intercourse with the 15 year old complainant, in the front passenger seat, of your car. You knew she was under 16 years old.

4. On 19th August 2010, after 10pm, you again took the 15 year old complainant for a car ride. You two drove to Valelevu, then to Wainibuku, and into the Nasinu Cemtery. Near a shelter, you again had sexual intercourse with the 15 year old in the front passenger seat of your car. You knew she was under 16 years old, at the time.

5. I have taken note of your previous convictions and your plea in mitigation. I note that you have committed no offence in the last 10 years, and thus I will treat you as a first offender. You are the sole breadwinner in your family. You look after a wife and three young children.

6. Defiling a girl between 13 and 16 years old is a serious offence, and it carries a maximum penatly of 10 years imprisonment. Case precedents set the tarifff between a suspended prison sentence to a sentence of 4 years imprisonment. Cases of "virtuous friendship" between young people of the same age, which ended in sexual intercourse, often attracted a suspended prison sentence. Cases of old man in a supervisory capacity or position of trust, who set out to seduce a girl under 16 years often get a prison sentence: Elia Donumainasava v The State, Criminal Appeal No. HAA 032 of 2001S, High Court, Suva; Etonia Rokowaqa v State, Criminal Appeal No. HAA 037 of 2004, High Court, Suva and State v Etonia Kabaura, Criminal Case No. HAC 117 of 2010S, High Court, Suva.

7. The mitigating factors were that you are now 44 years old, married with 3 young children, aged between 9 and 2 years old. You are the sole breadwinner, and work for Pacific Energy as a welder. You are remorseful, and you have been remanded in custody for 2 weeks. You have not offended in the last 20 years.

8. The aggravating factors were that you were 42 years old at the time, and the complainant 15 years old. You allowed yourself to have sexual intercourse with her, knowing she was under 16 years old. You took her out for a car ride after 10pm, when you as a father, knew she should be with her parents.You gave her money to fulfill your desires. You exploited her naivety.

9. I start with a sentence of 2 years imprisonment. For the aggravating factors, I increase the 2 years by 2 years, making a total of 4 years imprisonment. For the mitigating factors, I decrease the 4 years by 1 year, leaving a balance of 3 years imprisonment.

10. I sentence you to 3 years imprisonment on each count, both sentences to be concurrent to each other, that is, a total sentence of 3 years imprisonment. You must serve a term of 2 years, before you are eligible for parole. I order so accordingly.

Salesi Temo
JUDGE

Solicitors for the State : Office of Director of Public Prosecution, Suva.
Solicitors for Accused : Q.B. Bale & Associates, Barristers & Solicitors, Suva