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State v Sikaivotu [2014] FJHC 562; HAC008.2013 (1 August 2014)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 08/ 2013

BETWEEN:

STATE

AND:

KELEMEDI SIKAIVOTU

COUNSEL: Ms. P. Low for the State
Ms. S. Tarai for the Accused

Date of Hearing: 30/07/2014.
Date of Sentence: 01/08/2014.
[Name of the victim is suppressed. He will be referred to as P.K.C.)

SENTENCE

[01] The Director of Public Prosecution had preferred the following charges against the accused above named.

Count One

Statement of Offence

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

Particulars of Offence

KELEMEDI SIKAIVOTU between 1st of September 2012 to 31st October 2012 at Taveuni in the Northern Division penetrated the mouth of P.K.C. with his penis without P.K.C's consent.

Second Count

Statement of Offence

ATTEMPT TO COMMIT RAPE: Contrary to section 208 of the Crimes Decree No: 44 of 2009.

Particulars of Offence

KELEMEDI SIKAIVOTU between 1st of September 2012 to 30th November 2012 at Taveuni in the Northern Division, attempted to penetrate the anus of P.K.C. with his penis without P.K.C's consent.

[02] When the Plea was taken up on the 15th day of April, 2013 the accused had pleaded not guilty to the charges against him. But on 29/07/2014, when the trial was about to begin, the accused through his counsel informed that he wished to reconsider his plea. Information was read out and explained the charges in both languages. Accused after understanding the charges pleaded guilty to both charges. Accepting the Plea to be unequivocal this court found him guilty and convicted him under Sections 207(1) and (2) (c) and 208 of the Crimes Decree No: 44 of 2009.

[03] State Counsel submitted following summary of facts of which the accused admitted.

[04] The victim P.K.C was 9 years of age at the time the offending. He is residing at Mua Settlement Taveuni and he is a student.

The accused was 19 years of age at the time of offending and also residing in the same village. He is a farmer by profession.

The accused is charged for Rape and Attempt rape under sections 207(1) and (2) (a) and 208 of the Crimes Decree No: 44 of 2009.

The victim and the accused person knew each other as they both lived together in the same settlement and the accused is the victim's uncle as he is the step cousin of the victim's mother.

Some time between 1st September 2012 to 31st October 2012, at Mua Settlement Taveuni, the victim was sent by his mother, Ilisabeta Laisa to another home within the settlement, to charge their mobile phone. Whilst returning home from charging their phone, the accused person called victim from behind one of the toilets in the settlement, held victim's head so hard, opened victim's mouth and made victim sucked his penis until victim felt something wet inside his mouth. Victim then spat on the ground and wiped his mouth.

The second incident also took place sometime between 1st of September 2012 to 31st of October 2012, in which the victim was also sent by his mother from their home in Mua Taveuni to another home within the settlement to charge their mobile phone. Victim claimed that the accused called him again and the latter forced victim to suck his penis which the victim suck the accused's penis until victim's mouth was wet.

On the third occasion, which is sometime between 1st of September 2012 to 30th November 2012, the victim was sent by his mother to buy noodles from the shop, when the accused called him behind a toilet within the same settlement. Victim responded to the accused's call and went to the accused in which the later told the victim that he wished to insert his penis into the anus of then victim. Victim had told the accused that his mother would be angry with him but the accused insisted the victim to take off his pants but whilst the accused was still trying to forcefully remove the victim's pants, someone went past them and the accused told the victim to run to his house.

The victim had told his younger brother who was 6 years old in 2012 and he then told this to his mother. Then victim was then questioned by her mother and he admitted that he had sucked the accused's penis twice sometimes in October 2012 and the accused had forcefully tried to insert his penis into his anus but he managed to run away. She then reported the matter to the police.

On 26th November 2012, the victim was medically examined at the Taveuni Hospital and a medical report was obtained for the same. The medical report says "no visible signs of lacerations or bruising".

On 27th November 2012, the accused was then arrested and interviewed under caution at the Taveuni Police Station, in which he admitted to all 3 allegations leveled against him.
On 27th November 2012, the accused was then formally charged at the Taveuni Police Station in which he gave no statement to the police.
The accused is a first offender and has nil previous convictions.

Tariff for Rape

[05] In the case of Chand v State [2007] AAU005. 2006S (25 June 2007), the court referred to the case of Mohammed Kasim v The State Appeal 14 of 1993 where the same court observed:

"We consider that any rape case without aggravating or mitigating feature the starting point for sentencing an adult should be a term of imprisonment of 7 years. It must be recognized by the courts that the crime of rape has become altogether too frequent and the sentences imposed by the courts for that crime must more nearly reflect an understandable public outrage"

[06] In Sireli v State [2008] FJCA 86; AAU0098 of 2008S (25 November 2008). The court also referred to the case of State v Lasaro Turagabeci & others HAC 0008 of 1996, the court observed:

"The courts have made it clear that rapist 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 of 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 sentence".

[07] In State v AV [2009] FJHC24: JAC 192.2008(2 February 2009) the court stated:-

"Rape is the most serious form of sexual assault. In this case a child was raped. Society cannot condone any form of sexual assault on children. Children are our future. The courts have a positive obligation under the Constitution to protect the vulnerable from any form of violence or sexual abuse. Sexual offenders must be deterred from committing this kind of offences...."

The tariff for rape of a child is between 10-14 years imprisonment. (Mutch v State, Cr. App. AAU0060/99, Mani v State, Cr. App. No.HAA0053/02L, State v Saitava, Cr. Case No: HAC10/07, State v Marawa, Cr. Case No: 016/03, Drotini v State, Cr. App. AAU001/05 and State v Tony, Cr. App. No. HAA003/(08)"

Tariff for Attempt Rape

[08] In State v Bulivou [2010] FJHC 382, the tariff was stated to rage from 12 months to 5 years imprisonment.

[09] The accused was 18 years and 10 months old at the time of offending. He is single and he is a farmer. He has studies up to class 7 at Primary level. His biological father has passed away and he was brought up by his aunt and uncle with whom he was staying with when these offences were committed.

[10] According to medical report of the victim had no visible injuries noted by the doctor. The victim was examined after about 03 months of the alleged incident.

[11] I have carefully considered these submissions in light of the provisions of the Sentencing and Penalties Decree No: 42 of 2009 especially sections 4(1), 4 (2) and 15(3), to determine an appropriate sentence.

[12] Now I consider the aggravating factors:

1. The victim was 09 years old, a class 3 student at the time of the incident.
   
2. The victim is the nephew of the accused person.
   
3. The act done to the victim by the accused person took away the victim's dignity in the society.
   
4. The accused person has betrayed the bond between an uncle and a nephew.
   
5. The accused person has shattered the close ties of his family, the victim's family and their relatives.
   
6. The accused person had committed the act in the settlement which the victim and the accused both regarded as his home.
   

[13] Now I consider the mitigating circumstances:

(a) The accused pleaded guilty before the commencement of the trial.

(b) By pleading guilty he has saved the victim from having to re-live his ordeal all over again whilst giving evidence.

(c) Accused was 18 years and 10 months old at the time of committing the offence. He is now 21 years old and has no record of any previous convictions. He is a first offender.

(d) The accused comes from a very disadvantaged and a poor family. He lost his father when he was a child.

(e) He supports his family who had raised him.

(f) He co-operated with the Police and made confession in his record of Caution Interview Statement.

(g) He is remorseful.

[14] Considering all aggravating and mitigating circumstances I sentence you as follows:

• For the first count I take 10 years imprisonment as the starting point. I add two years for aggravating factors to reach the period of imprisonment at 12 years. I deduct 03 years for the mitigating factors.
  
• For the second count I take 02 years imprisonment as the starting point. I add two years for aggravating factors to reach the period of imprisonment at 04 years. I deduct 01 year for the mitigating factors.
  

[15] I order both sentence to run concurrent to each other. In summary you are sentenced to 09 years imprisonment.

[16] The accused was born on 13/11/1993. He was 18 years and 09 months old at the time of offending. He committed the offence just entering his adulthood. He has spent nearly 01 month in remand for this case.

[17] Considering all and acting in terms of section 18(1) of the Sentencing and Penalties Decree, I impose 05 years as non-parole period.

[18] 30 days to Appeal.

P. Kumararatnam
JUDGE

At Labasa
01/08/ 2014