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State v Delaivuna [2016] FJHC 886; HAC285.2016 (5 October 2016)

IN THE HIGH COURT OF FIJI
AT SUVA

CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC. 285 of 2016

BETWEEN: STATE PROSECUTION

AND: ISIKELI DELAIVUNA
ACCUSED PERSON
Counsel: Ms. K. Semisi for State
Mr P. Tawake for Accused

Sentence: 05^th October 2016

S E N T E N C E

[The name of the victim is suppressed. The victim will be referred to as A.B]

1. Isikeli Delaivuna, on your own plea of guilty you were convicted of one count of Rape of a 5 year old girl.
   
2. The summary of facts as submitted by State that was admitted by you are:

The complainant is ‘A.B’, 5 year old student of Lot 1 Nawame Road, Tacirua. The accused is Isikeli Delaivuna, 46 year old, unemployed man of Lot 4, Nawame Road, Tacirua East. The accused is not related to the complainant but is a family friend.

The complainant’s mother is one Kalesi R. Bulamaibau, 23 year old, Project Officer of Lot 1 Nawame Road, Tacirua. The complainant’s cousin, namely, Anthony Pete Mitchell, a 14 year old student of Lot 1, Nawame Road, Tacirua also lives with the complainant and her family, which includes her mother and grandparents.

On the 31^st July 2016 at about 4pm, the complainant’s cousin was watching movies in the sitting room and the rest of the family were at home sleeping, except for the complainant and the accused. The complainant and the accused were lying down on the floor in the sitting room, watching TV. He went into the room and then went back into the sitting room and told the complainant to go into his aunt’s room to sleep but she said that she wanted to watch cartoon, which was on at the time. The complainant was sitting beside her mother, who was sleeping on the long settee. He went back to the room and after 5 minutes, he went back to the sitting room and saw the complainant and the accused lying down beside each other and covered with a blanket.

He became suspicious and after a while he saw the complainant’s mother’s phone charging on top of the ironing board in the sitting room and he switched on the video camera on the phone and went into the room. After a while, he saw the complainant run outside towards the porch and after about 2 minutes, he saw the accused walk out of the sitting room towards the porch, so he came out of the room. He checked the phone and saw the recording of what the accused had done to the complainant. He then called the complainant to go inside and watch cartoon. He held on to the phone while waiting for the complainant’s mother to wake up, to show her the recording on the mobile phone. He did not tell his uncle and aunt. At bout 5pm, the complainant’s mother woke up and then he showed her the recording but she did not look at it properly, she paused the recording on the mobile phone and left the mobile phone.

On the 1^st August 2016, when the complainant’s mother returned from work, she then looked at the recording again and saw what the accused had done to the complainant. She was angry and then showed the recording to her parents and then they reported the matter to the police.

The complainant’s mother saw the accused masturbating and pulling the complainant’s thighs. She also saw the accused touching the complainant’s vagina.

Then accused was arrested and interviewed under caution wherein he admitted committing the offences.

In Q & A No. 34, the accused admitted touching the complainant’s private parts;

In Q & A No. 35, the accused admitted touching the complainant’s vagina; and

In Q & A No. 36, the accused admitted fondling the complainant’s vagina.

On the 2^nd August 2016, the complainant was medically examined and it was found that there was a superficial abrasion with redness and bruise noted on both sides of the vaginal opening which shows signs of penetration of the complainant’s vagina.

He was later charged with one count of Rape, contrary to section 207 (1) and (2) (b) and (3) of the Crimes Decree No. 44 of 2009.

3. The maximum punishment for rape is imprisonment for life. Tariff for rape of a child is 10 – 16 years imprisonment (Raj v. State (CAV003 of 2014). Rape of small children has become prevalent in Fiji. Hence, deterrent punishment is justified.
   
4. In case of State v. Tauvoli [2011] FJHC 216; HAC027.2011 (18 April 2011) Hon. Justice Madigan said:
   

“Rape of children is a very serious offence indeed and it seems to be very prevalent in Fiji at the time. The legislation has dictated harsh penalties and the Courts are imposing those penalties in order to reflect society’s obhorrence 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.”

5. In State v. AV [2009] FJHC 24; JAC 192.2008 (2 February 2009) Hon. Justice Goundar stated that:-
   

“Rape is the most serious form of sexual assault. In this case a child was raped. Society cannot condone any form of sexual assaults 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.”

6. Without taking into consideration of the aggravating and mitigating factors I take 12 years as the starting point.
   

Aggravating factors

7. The victim is a child of 5 years old. You are 46 years old and the age difference is 41 years. You took advantage of the vulnerability of the victim child as she would not have even understood what you did to her and the gravity of your actions.
   
8. Although you are not a relative of the victim, you were a family friend of complainant’s family. You were so close to the complainant’s family, that you were watching TV lying on their floor. That was how you got the opportunity to cover yourself and the complainant with a blanket so that you got the opportunity to commit the sexual act on the complainant. Obviously the family members of the victim child trusted you as a 46 year old family friend when they allowed you to lay down with the 5 year old child and to watch TV in their house. You clearly breached that trust.
   
9. Injuries were caused by you on the complainant’s vagina when you raped her. Medical examination revealed superficial abrasion with redness and bruises on both sides of vaginal opening of the victim.
   

Mitigating factors

10. You are a first offender. You co-operated with the police and admitted committing the offence. You were remorseful.
11. You pleaded guilty to the charge saving time of Court and avoiding further trauma to the victim so that she need not give evidence in court. Your personal background is also taken into consideration.
    
12. For the aggravating factors. I add 4 years and deduct 1 year for the mitigating factors. I further deduct 4 years for the early guilty plea.
    
13. Now your sentence is 11 years imprisonment. Your non-parole period will be 9 years.
    
14. You have been in remand for 2 months for this case. Therefore I further deduct 2 months from your head sentence for your period in remand. Now your final sentence is 10 years and 10 months imprisonment with a non-parole period of 8 years and 10 months.
    

Priyantha Fernando

Judge

At Suva
05^th October 2016

Solicitors
Office of the Director of Public Prosecutions for the State
Office of the Legal Aid Commission for Accused