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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION
CRIMINAL CASE NO.: HAC 207 OF 2011
STATE
v
OTETI SIVONATOTO
Counsels : Mr. J. Niudamu for the State
: Ms. J Nair for the accused
Date of Sentence : 27 March 2014
(Name of the victim is suppressed she is referred to as MN)
SENTENCE
First Count
Statement of Offence
RAPE: Contrary to Section 207 (1) and 2 (b) of the Crimes Decree No. 44 of 2009.
Particulars of Offence
OTETI SIVOINATOTO between September 2010 and May 2011 at Lautoka in the Western Division had carnal knowledge of MN without her consent.
Second Count
Statement of Offence
ABORTION: Contrary to Section 234 (1) and 4 (b) of the Crimes Decree No. 44 of 2009.
Particulars of Offence
OTETI SIVOINATOTO between April 2011 and August 2011 at Lautoka in the Western Division did an act on MN, with intent to procure abortion.
Sometimes in March 2011, the complainant (MN) was not having her mensus. At the time, she was staying with the accused (Mr Oteti Sivoinatoto) at Bandila Crescent, Rifle Range in Lautoka. The complainant then told the accused (Mr Oteti Sivoinatoto) sometimes in April 2011 and August 2011 that her mensus were not coming and she thought that she was pregnant. The accused then gave the complainant rum which was mixed with milk for the complainant to drink to abort the baby. The complainant drank and nothing happened.
On the following day, the complainant after returning from school, the accused mixed her a strong tea to drink to abort the baby but it was again unsuccessful. On another occasion sometimes in April 2011 and August 2011, the accused gave the complainant two (2) raw eggs to drink to abort the baby.
The matter was reported to the Police and he was charged for Abortion contrary to Section 234 (1) (4) (b) of the Crimes Decree 2009. The accused was then cautioned interviewed by the Police and he admits to giving various things to the Complainant to drink in order to abort the baby, but those attempts failed.
"We consider that at 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."
"Rape of children is a very serious offence in deed and it seems to be very prevalent in Fiji at the time. The legislation had 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."
In this case 42 year step father was sentenced for 13 years with non parole period of 10 years for digital rape of 14 year old step daughter.
"The accused's engagement in his unilateral sexual activity with a little girl who was insensitive to such activity is most abhorrent. This kind of immoral act on a little girl of MB's standing is bound to yield adverse results and psychological trauma, the effect of which is indeed difficult to foresee and asses even by psychologists and sociologists. The depravity of the accused in committing the offence should be denounced to save little children for their own future; and, the men of the accused's caliber should not be allowed to deny the children of their legitimate place in the community. In passing down the sentence in case of this nature, deterrence is therefore, of paramount importance."
"The accused had not shown any remorse or repentance. On the contrary, he relentlessly castigated the witnesses saying that they were making up a false allegation at the expense of the little girl to avenge an unsubstantiated previous incident of refusing a loan to MB's mother. This added, in my view, insult to the injury. While court recognizes that the accused was entitled to advance any proposition in support of his case, court equally recognizes that it should show its displeasure by showing no mercy in the matter of sentence when such allegations are found to be totally ill-founded as in this case."
Considering all, I increase your sentence by 3 years now the sentence is 14 years
imprisonment.
Considering above, I reduce 1 year from your sentence now your sentence is 13 years imprisonment.
"The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong'; "when... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behavior and ask itself what is the appropriate sentence for all the offences."
Summary
Sudharshana De Silva
JUDGE
At Lautoka
27th March 2014
Solicitors: Office of the Director of Public Prosecution for State
P & Nair Lawyers for Accused
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URL: http://www.paclii.org/fj/cases/FJHC/2014/208.html
