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State v Tutara - Sentence [2015] FJHC 796; HAC050.2014LAB (23 October 2015)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 050 OF 2014LAB

STATE

V

KATOKAITI TUTARA

Counsels : Ms. A. Vavakadakuafor State
Mr. M. Fesaitufor Accused

Hearings : 19, 20 and 21October, 2015
Summing Up : 22October, 2015
Judgment : 22 October, 2015
Sentence : 23 October, 2015

SENTENCE

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

First Count
Statement of Offence

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

Particulars of Offence

KATOKAITI TUTARA, on the 20th day of July 2013, in Rabi, in the Northern Division, had carnal knowledge of A, without her consent.

Second Count
(Representative)
Statement of Offence

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

Particulars of Offence

KATOKAITI TUTARA, on the 24thday of January 2014, in Rabi, in the Northern Division, had carnal knowledge of A, without her consent.

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

KATOKAITI TUTARA, on the 12th day of January 2013, in Rabi, in the Northern Division, had carnal knowledge of B, 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

KATOKAITI TUTARA, on the 20thday of January 2014, in Rabi, in the Northern Division, had carnal knowledge of B, without her consent.

Fifth Count
Statement of Offence

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

Particulars of Offence

KATOKAITI TUTARA, on the 28thday of January 2014, in Rabi, in the Northern Division, had carnal knowledge of B, without her consent.

2. The brief facts of the case were as follows. At the time of the offence, you were 63 or 64 years old. The complainants were your granddaughters. At the time of the offences, they were aged between 13 and 15 years old. The complainants' mothers were your daughters. At the times mentioned in the counts, you forced yourself on them, penetrated their vaginas with your penis without their consent, and you well knew they were not consenting to sex with you, at the material time. In count no. 3, the complainant was under 13 years old, when you raped her.

3. "Rape" as a sexual offence, is at the top of the criminal calendar, as far as sexual offences were concerned. It involved an attack on a person's dignity. It is also an attack on a person's right to privacy. It intrudes into a person's right to enjoy a quality life. Those who find themselves on the wrong side of the law must not expect leniency. The law makers of this country had prescribed a maximum sentence of life imprisonment for those found guilty of rape (see section 207 (1) of the Crimes Decree 2009). The Honourable Chief Justice via the Supreme Court case of AnandAbay Raj vsThe State, Criminal Appeal Case No. CAV 0003 of 2014, hadset the tariff for the rape of juveniles a sentence between 10 to 16 years imprisonment. The actual sentence will depend on the mitigating and aggravating factors.

4. In this case, the aggravating factors were as follows:

(i) Breach of Trust. You were the complainants' grandfather. Their mothers were your biological daughters. At the time of the offences, they were 13 to 15 years old. As their grandfather, they look up to you for guidance and security. As their grandfather, you were suppose to look after them, and see that no-one harms them. However, you did the unthinkable. Instead of protecting them, you raped them. This was a serious breach of the trust they had in you.

(ii) Rape of children. This type of offending is becoming prevalent in our community. The courts had said so many times before that, it will not idly stand by and let children be treated in this way. It will step in and pass heavy sentences, as a warning to others, not to abuse children. As the courts had repeatedly said before, the children of this country are its future.

(iii) The use of a cane knife to threaten the child complainants. During the offences, you continually used a cane knife and a kitchen knife to threaten your granddaughters before raping them. You are really a coward by threatening children with knives. This is the lowest type of act a person could do to children.

(iv) Use of a rope and cloth to subdue complainant No. 2 in count no. 5. You used a cloth to tie around the complainant's mouth to stop her from raising the alarm. Then you tied her wrists and ankles with a rope to stop her from resisting you. Then you raped her, while your wife was lying down sick in another room. You should not complain when you are given a heavy sentence to pay for your crimes.

5. The mitigating factors were as follows:

(i) You have not offender in the last 10 years;

(ii) You had been remanded in custody from 16 June 2014, that is, approximately 1 year 4 months ago.

6. On count no. 1, I start with 14 years imprisonment. I add 5 years for the aggravating factors, making a total of 19 years imprisonment. I deduct 1 year 4 months for time already served, while remanded in custody, leaving a balance of 17 years 8 months. For not offending in the last 10 years, I deduct another 1 year 8 months, leaving a balance of 16 years imprisonment. On count no. 1, I sentence you to 16 years imprisonment.

7. I repeat the above process and sentence for counts no. 2, 3, 4 and 5.

8. In summary, your sentences are as follows:

(i) Count No. 1 - Rape : 16 years imprisonment

(ii) Count No. 2 - Rape : 16 years imprisonment

(iii) Count No. 3 - Rape : 16 years imprisonment

(iv) Count No. 4 - Rape : 16 years imprisonment

(v) Count No. 5 - Rape : 16 years imprisonment

9. Because of the principle of totality of sentencing, I direct that all the above sentences be made concurrent to each other, that is, a final sentence of 16 years imprisonment.

10. Mr. Katokaiti Tutara, for raping your two granddaughters in 2013 and 2014 in Rabi in the Northern Division, I sentence you to 16 years imprisonment, with a non-parole period of 15 years imprisonment, effective forthwith.

11. The names of the two complainants are permanently suppressed to protect their 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