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State v Tiko - Sentence [2017] FJHC 871; HAC116.2016S (7 November 2017)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 116 OF 2016S

STATE

vs

1. ILISONI TIKO
2. ADRIU ROGOMURI
3. EPINERI SAURARA
   

. Counsels : Mr. T. Tuenuku and Mr. Y. Prasad for State
Mr. N Tuifagalele for Accused No. 1
Mr. N. Tuifagalele for Accused No. 2
Mr. N. Tuifagalele for Accused No.3

Hearings : 24, 25, 26, 27, 30 and 31 October, 1, 2 and 3 November, 2017
Summing Up : 6^th November, 2017
Judgment : 6^th November, 2017
Sentence : 7^th November, 2017

SENTENCE

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

First Count

(Representative Count)

Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (a) and (3) of the Crime Act 2009.

Particulars of Offence

ILISONI TIKO between the 1^st day of November 2015 and 31^st day of November 2015, in Nausori, in the Central Division, penetrated the anus of W. W who is a child under the age of 13 years old, with his penis.

Second Count

(Representative Count)

Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (a) and (3) of the Crime Act 2009

Particulars of Offence

ADRIU ROGOMURI between the 1^st day of November 2015 and 31^st day of November 2015, in Nausori, in the Central Division, penetrated the anus of W. W, who is a child under the age of 13 years old, with his penis.

Third Count

(Representative Count)

Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (a) and (3) of the Crime Act 2009.

Particulars of Offence

EPINERI SAURARA between the 1^st day of January 2016 and the 19^th day of January 2016, in Nausori, in the Central Division, penetrated the anus of W. W who is a child under the age of 13 years old, with his penis.

2. The brief facts of the case were as follows. The male complainant (PW1) was 12 years old at the time of the offences. Ilisoni Tiko was 39 years old and single. Adriu Rogomuri was 35 years old, married with a young daughter. Epineri Saurara was 52 years, married with four children. In count no. 1, Ilisoni Tiko enticed PW1 to his village kitchen and thereafter forcefully sodomised him. In count no. 2, Adriu Rogomuri enticed PW1 to near his pig pen and thereafter forcefully sodomised him. In count no. 3, while PW1 was in Bu Tere’s house, Epineri Saurara forcefully sodomised him. The complainant was a 12 year old child at the time, and was thus incapable of giving his consent to the above. Further, the accuseds were deemed in law to know that PW1 was incapable of giving his consent to the incidents mentioned above. All the accuseds were PW1’s uncle. They all lived in the same village or near to PW1’s residence.
   
3. Unlawful sodomy is classified as rape under the Crimes Act 2009 (see sections 206 (5) and section 207 (1) and (2)(a) of the Crimes Act 2009). The maximum penalty is life imprisonment. For the rape of a child, the tariff is a sentence between 10 to 16 years imprisonment: Anand Abay Raj v The State, Criminal Appeal Case No. CAV 0003 of 2014, Supreme Court of Fiji. The final sentence will depend on the aggravating and mitigating factors.
   
4. In this case, the aggravating factors, were as follows:
   
   • (i) Serious Breach of Trust. All of you are related to the complainant. You are all the complainant’s uncle. He is your nephew. You all reside in the same village. In a village setting, the elder relatives are supposed to look after the young one, that is, guide them to become better citizens. You are the role models for the younger ones. The betterment of your village is determined by how you treat the young ones. In this case, you did exactly the opposite. You seriously breach the trust the complainant had in you, by sexually abusing him. Your behaviour could potentially have a negative ripple effect on the peace and harmony in the village. Relatives could start fighting other relatives. With your behaviour, you have hurt the feelings of others, especially the complainant’s family. Peace and harmony must be restored by each of you having to pay a high price for your individual misbehaviours. A long custodial sentence was therefore required to atone for your crimes.
     
   • (ii) Rape of a child. The court had said in the past and will say again that it will not tolerate the abuse of children, the future of this country. It will keep on passing long prison sentence, as warning to would be child rapists.
     
   • (iii) By offending against the complainant, you had no regards to his right as a child, no regards to his right as a human being and no regards to his right to live a peaceful and happy life.
     
5. The mitigating factors, were as follows:
   • (i) You are all first offenders.
   • (ii) Each of you had been remanded in custody for 7 months.
     
6. For Accused No. 1, on count no. 1, I start with a sentence of 12 years imprisonment. I add 4 years for the aggravating factors, making a total of 16 years imprisonment. For the 7 months spent in custody while remanded, I deduct 1 year, leaving a balance of 15 years imprisonment. For being a first offender, I deduct another 1 year, leaving a balance of 14 years imprisonment.
   
7. I repeat the above process and sentence for Accused No. 2 and 3, in counts no. 2 and 3 respectively.
   
8. In summary, your sentence are as follows:
   
   • (i) Count No. 1: Accused No. 1 - 14 years imprisonment
   • (ii) Count No. 2: Accused No. 2 - 14 years imprisonment
   • (iii) Count No. 3: Accused No. 3 - 14 years imprisonment
9. Mr. Ilisoni Tiko, Mr. Adriu Rogomuri and Mr. Epineri Saurara, for raping the child complainant at Tailevu in the Central Division between 1 November 2015 and 19 January 2016, I sentence each of you to 14 years imprisonment, with a non – parole period of 12 years imprisonment, effective forthwith.
   
10. Pursuant to Section 4 (1) of the Sentencing and Penalties Act 2009, the above sentence were designed to punish you in a manner which was just in all the circumstances, to protect the community from people like you, to deter other would-be child rapist and to signify that the court and the community denounce the rape of children.
    
11. The name of the complainant is permanently suppressed to protect his privacy.
    
12. You have 30 days to appeal to the Court of Appeal.
    

Salesi Temo
JUDGE

Solicitor for State : Office of the Director of Public Prosecution, Suva

Solicitor for Accused No. 1 : Mr. N. Tuifagalele, Barrister & Solicitor, Suva

Solicitor for Accused No. 2 : Mr. N. Tuifagalele, Barrister & Solicitor, Suva

Solicitor for Accused No. 3 : Mr. N. Tuifagalele, Barrister & Solicitor, Suva