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State v Waqasaqa - Sentence [2015] FJHC 472; HAC059.2014LAB (25 June 2015)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 059 OF 2014LAB

STATE

V

MOSESE WAQASAQA

Counsels : Mr. L. Fotofili for State
Ms. L. Raisua for Accused

Hearings : 22 and 23 June, 2015
Summing Up : 24 June, 2015
Judgment ; 24 June 2015
Sentence : 25 June, 2015

SENTENCE

1. In a judgment delivered yesterday, you were found guilty and convicted by the court on the following counts in the following information:

First Count
Statement of Offence

RAPE: Contrary to section 149 and 150 of the Penal Code Cap 17.

Particulars of Offence

MOSESE WAQASAQA between the 1st day and the 29th day of February 2008 at Wainikoro, Labasa in the Northern Division had unlawful carnal knowledge of A.K. without her consent.

Second Count
Statement of Offence

RAPE: Contrary to section 207 (1) and (2) (a) and (3) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

MOSESE WAQASAQA between the 1st day and the 30th day of April 2010 at Wainikoro, Labasa in the Northern Division had unlawful carnal knowledge of A.K. a girl aged 10 years.

Third Count
Statement of Offence

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

Particulars of Offence

MOSESE WAQASAQA between the 1st day and the 31st day of December 2013 at Wainikoro, Labasa in the Northern Division had unlawful carnal knowledge of A.K. without her consent.

Fourth Count
Statement of Offence

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

Particulars of Offence

MOSESE WAQASAQA between the 1st day and the 30th day of April 2014 at Wainikoro, Labasa in the Northern Division had unlawful carnal knowledge of A.K. without her consent.

2. The brief facts were as follows. In 2014, you were 64 years old. The complainant was 14 years old. The complainant was your grand-daughter. You and your wife brought her up ever since she was 9 months old. You were her father and grandfather to her. You paid for her education and provided her with the other necessities of life. However, in 2008, when she was 8 years old, you began to sexually abuse her, that is, you raped her. You repeated the crime in 2010, when she was 10 years old. You continued with the crime in 2013 and 2014. She couldn't take the abuse anymore, and reported the same to an aunty in June 2014. Her parents were called, and the matter was reported to police. You were later charged, tried and convicted for the offences, as mentioned above.

3. "Rape" as a criminal offence is always viewed seriously by the lawmakers of this country, and they had prescribed it a maximum sentence of life imprisonment (see sections 149 and 150 of the repealed Penal Code, Chapter 17; and section 207 (1) of the Crimes Decree 2009). Following the lawmakers' above intention, the courts had also viewed the offence of rape seriously, and on 20 August 2014, the highest Court in the land, the Supreme Court of the Republic of Fiji via a decision of His Lordship The Honourable Chief Justice, set the tariff for the rape of juveniles (i.e. under 18 years old) a sentence between 10 to 16 years imprisonment. Of course, the final sentence would depend on the aggravating and mitigating factors.

4. The aggravating factors in this case were as follows:

(i) Serious Breach of Trust. The accused, aged 64 years old, is the female complainant's grandfather. She is 14 years old. Grandchildren, in the normal course of family life, are always treasures to grandparents. They bring joy and happiness to grandparents. The relationship between grandchildren and grandparents are always special and sacred. Grandparents often counsel their grandchildren to become confident and aspiring citizens of this country. Grandparents are often refuge for their grandchildren. There is a special relationship of trust between the two. However, you have done the unthinkable. You have tread on a place where even the angels fear to tread. You have raped your grand- daughter when she was 8, 10, 13 and 14 years old. You have breached the trust between grandparents and grandchildren. You have breached the trust your grand- daughter had for you. You should not complain when your liberty is taken away to pay for your crimes;

(ii) Rape of a child. The courts had repeatedly said before, and it will say again, it will not stand idly by and let the most vulnerable be sexually exploited in our society. It will act by passing deterrent sentences to deter would-be offenders;

(iii) By offending against the complainant, you have ruined her life, and you have shown an utter disregard to her human rights and her dignity. You have made her loose her confidence when she is with others. You will have to accept that you will have to be put away for long, to assist her regain her confidence.

5. The mitigating factors are as follows:

(i) At the age of 65 years, this is your first offence;

(ii) You had been remanded in custody since 11 July, 2014, that is, approximately one year ago.

6. On count no. 1, I start with a sentence of 13 years imprisonment. I add 3 years for the aggravating factors, making a total of 16 years imprisonment. I deduct 1 year from the 16 years for time already served while remanded in custody, leaving a balance of 15 years imprisonment. For being a first offender at the age of 65 years, I deduct 2 years from the 15 years, leaving a balance of 13 years imprisonment. You are sentenced to 13 years imprisonment for count no. 1.

7. I repeat the above process and sentence for count no. 2, 3 and 4.

8. The summary of your sentences are as follows:

(i) Count No. 1 - Rape - 13 years imprisonment.

(ii) Count No. 2 - Rape - 13 years imprisonment.

(iii) Count No. 3 - Rape - 13 years imprisonment.

(iv) Count No. 4 - Rape - 13 years imprisonment.

9. Because of the totality principle of sentencing, I direct that all the above sentences be made concurrent to each other, making a final sentence of 13 years imprisonment.

10. Mr. MoseseWaqasaqa, for raping the complainant in 2008, 2010, 2013 and 2014, I sentence you to 13 years imprisonment, with a non-parole period of 11 years, effective forthwith.

11. The name of the complainant is permanently suppressed to protect her privacy.

SalesiTemo
JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Labasa
Solicitor for the Accused : Office of the Legal Aid Commission, Labasa