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State v Gonedau - Sentence [2013] FJHC 84; HAC14.2012 (5 March 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC 14 of 2012

BETWEEN:

STATE

AND:

TAITUSI GONEDAU

BEFORE : HON. MR. JUSTICE PAUL K. MADIGAN

Counsel : Mr. J Niudamu with Mr. M. Mataiva for State
: Mr. N. Sharma (LAC) for deceased

Date of Mitigation : 27th February 2013
Date of Sentence : 5th March 2013

SENTENCE

[1] This accused has been convicted after trial in this Court of one count of indecent assault and one count of rape.

The charges read:

Count 1

Statement of Offence

INDECENT ASSAULT: Contrary to Section 212 (1) of the Crimes Decree, 2009.

Particulars of Offence

TAITUSI GONEDAU on the 3rd day of January 2012, at Nabua in the Central Division, unlawfully and indecently assaulted (name withheld)

Count 2

Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (a) of the Crimes Decree, 2009.

Particulars of Offence

TAITUSI GONEDAU on the 4th day of January 2012, at Nabua in the Central Division, penetrated the vagina of (name withheld) with his penis, without her consent.

[2] The facts of the case were that at all material times the accused was the pastor of a small evangelical church at Nabua called the Emmanuel Christian Fellowship. He is no longer a pastor there, having been relieved of his duties following his being charged with these offences.

[3] The victim of these two offences (whom we shall call Mrs. K.) is a married lady aged 28 years. In early January 2012 she and her husband were having serious marital problems and Mrs. K. asked the accused and his wife if she could stay with them for a day or two while trying to resolve the problems with her husband. The accused who is a cousin of Mrs. K. had on previous occasions counseled Mrs. K. when she had had problems and she anticipated that that would happen on this occasion. She arrived there in the afternoon of the 2nd January and spent that day and night with the accused and his wife without incident. The next day both the accused and his wife went to work and they asked Mrs. K. to look after their 4 children to which Mrs. K. agreed. That afternoon, the Pastor came home at about 2pm because he was unwell with a headache and a boil under his arm. He asked Mrs. K. to massage him which she did. He then hugged her and Mrs. K. repaired to the kitchen to cook a meal. The accused followed her into the kitchen where he fondled her breast and took her hand and put it down inside his pants to touch his genitals.

[4] That evening the accused and his wife went to a funeral leaving Mrs. K. at home to look after the children. At about 3am the accused having returned home woke her up and told her to come to his bed. Mrs. K. refused but he pulled her by the collar of her shirt and forced her on to his bed. Mrs. K. protested but her sulu having fallen to the floor, he tore her panties off and raped her. The next morning Mrs. K. left the house and went to an aunt at Valelevu and told her what had happened. A report was made to the police.

[5] Indecent assault carries a maximum penalty of five years and rape a maximum of life imprisonment. The rape sentence will therefore become the foundation for sentence. Since the Court of Appeal case of Kasim Appeal 21 of 1993, rape of adult victims incur a minimum term of seven years and indeed more if these has been a breach of trust or some kind of deception to obtain consent.

[6] I take 7 years as a starting point for this persistent opportunistic rape of a woman who had come to the accused in distress. There has been a clear breach of trust, because the victim had been looking to her pastor (the accused) for comfort and counseling for her marital problems. For this seriously aggravating factor I add three years bringing the interim total term of imprisonment to ten years.

[7] The accused's Counsel has mitigated for him and submitted every possible thing that could be said in his favour. The Court cannot accept however that a breach of trust rape such as this could attract a sentence that could be served wholly or partly in the community. The public of Fiji are presently outraged at the ever increasing incidence of this crime and to at least in part assuage the feelings of the community the Courts must visit rapists with heavy sentences. Fijian women of all races and ages deserve the support of the judiciary in this regard.

[8] From the interim total of ten years, I do allow discount for some valid mitigating features:

− clear record
− being the father of four children with another due to be born in 2 months

For this I allow a reduction of 1 year, meaning the accused will serve a term of nine years for his rape conviction.

[9] The tariff for indecent assault is from one year to four years and for this assault of touching her breast and forcing Mrs. K. to feel his genitals I pass a sentence of three years – a term to be served concurrently with the nine years for rape.

[10] The accused will serve a minimum term of imprisonment of seven years before being eligible for parole.

Paul K. Madigan
JUDGE

At Suva
05th March 2013