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State v Fusi - Sentence [2018] FJHC 1215; HAC223.2017 (18 December 2018)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 223 of 2017

STATE

vs.

SIONE FUSI

Counsel: Mr. T. Tuenuku with Ms. S. Alagendra

and Ms. J Fatiaki for the State
Ms. N. Mishra with Mr. Verebalavu K for the Accused

Date of Hearing: 3^rd, 5^th and 6^th December 2018
Date of Summing Up: 10^th December 2018
Date of Judgment: 11^th December 2018
Date of Sentence: 18^th December 2018

SENTENCE

Mr. Sione Fusi, you stand convicted for one count of Rape, contrary to Section 207 (1) and (2) (a) and (3) of the Crimes Act, which carries a maximum penalty of life imprisonment. The particulars of the offence are that:

Statement of Offence (a)

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

Particulars of Offence (b)

SIONE FUSI, on the 16^th day of July 2017, at Navuso village, Nausori in the Eastern Division, had carnal knowledge of AB, a child under the age of thirteen years.

It was proved at the conclusion of the hearing that you have requested the complainant to come and have ice blocks, when he was raking with his sibling. Once you gave them ice blocks, the sibling had gone, leaving the complainant alone with you at the house. You have then closed the door and penetrated the anus of the complainant with your penis. Once you have done it, you have taken the complainant to the bathroom and assaulted him with a branch of a tree and swore at him with bad words. The complainant had gone home and related this ordeal that he encountered, with his grandmother forthwith.

Rape is one of the most humiliating and distressing crimes. It becomes more serious when it is involved with a child victim. Hence, I find the rape in this nature is a very serious crime. In this case, the complainant was sexually abused by a person who is known to him. This form of sexual exploitation of children by the known adult is a serious offence.

The learned counsel for the prosecution in her well researched sentencing submissions provided the statistic issued by the Office of Director of Public Prosecution in respect of sexual offences, which reveals a disturbing truth about the sexual exploitation of young children of this country. The learned counsel for the prosecution submitted that:

• (i) The statistics released by the Office of the Director of Public Prosecutions (ODPP) shows that between May 2015 to November 2018 out of 1008 cases of rape and sexual offences filed, in 502 cases the victims were children. Out of these 502 cases, 260 victims were children under the age of 13 and 100 victims were children under the age of 8. 49 victims were children under the age of 5.
  
• (ii) The actual figures for children who are victims of rape and sexual abuse would be much higher considering the number of unreported cases that are likely to exist. When cast against the total population of Fiji, which stands at only 913, 964, the proportion of children who are victims of sexual violence is significant. The numbers are extremely troubling.
  
• (iii) In the year 2015, out of the 138 rape and sexual violence cases filed, in 87 cases the victims were children. Out of these 87 cases, in 40 cases the children were below the age of 13 and in 19 cases the children were below the age of 8.
  
• (iv) In 2016, this number soared to 150 child victims (i.e. 63 more children than was recorded in 2015) and out of the 150 child victims, 70 children were below 13 and 20 were below the age of 8.
  
• (v) In 2017, there were 444 cases of rape and sexual abuse filed for that year alone – that is 216 more cases than was filed the previous year. Out of these 444 cases, in 130 cases the victims were children. And out of these 130 children 72 victims were below the age of 13 and 27 victims were below the age of 8.
  
• (vi) In the last 11 months – between January to November 2018 – the statistics indicate that out of the 198 cases of rape and sexual violence filed, in 135 cases the victims are children. Out of these 135 cases, 78 victims were aged below 13 years and 34 victims were below 8 years and 13 child victims are below 5 years. The ages of the youngest victims of rape and sexual abuse in cases charged in the last 9 months are as low as 2 years, 3 years and 4 years.
  

The above statistics establish that the sexual exploitations of children are prevalence in the society. The Fiji Court of Appeal in Subramani v State [2018] FJCA 82; AAU0112.2014 (1 June 2018) has discussed the appropriate objective of the sentencing of offenders who have committed offences of gross sexual exploitation of young children, where the Fiji Court of Appeal held that:

“The offence of rape of young person related to the appellant is a serious offence. In this case the complainant was 11 years old and the appellant was her grand uncle (her grandfather’s brother). The authorities indicate that whilst rehabilitation is a factor to be considered when fixing a non-parole period, so also are deterrence, denunciation, condign punishment and community protection and expectations. The appropriate person to balance these objectives in each case is the sentencing judge. In the present case, given the age of the appellant, re-habilitation is not a particularly relevant matter whereas the expectations of the community and the protection of young girls should be reflected in both the head sentence and the non-parole term so as to send a strong signal that the counts will impose appropriate sentences in such cases.”

The Supreme Court of Fiji in Aitcheson v State [2018] FJSC 29; CAV0012.2018 (2 November 2018) held that the increasing prevalence of the crimes of this nature demands the courts to consider widening the tariff for the rape against children. The Supreme Court of Fiji held that:

“The increasing prevalence of these crimes, crimes characterised by disturbing aggravating circumstances, means the court must consider widening the tariff for rape against children. It will be for judges to exercise their discretion taking into account the age group of these child victims. I do not for myself believe that that judicial discretion should be shackled. But it is obvious to state that crimes like these on the youngest children are the most abhorrent.”

Purpose of the Sentence

In view of the serious nature and the prevalence of the crimes of this nature, the main purpose of this sentence is founded on the principle of deterrence. It is a responsibility of the court to deter offenders or other persons from committing offences of the same or similar nature and protect the community from offenders of this nature. A harsh and long custodial sentence is inevitable for the offences of this nature in order to demonstrate the gravity of the offence and also reflect that the civilized society denounce such crimes without any reservation.

Tariff

Hon. Chief Justice Gates in Aitcheson v State ( Supra) held that the tariff for rape of a child is between 11 -20 years’ imprisonment period.

Level of Harm and Culpability

The complainant was five years old when this incident took place. Doctor Alofa Funaki in her evidence explained that she found the complainant was in a state of shock and could not properly engaged with his surrounding when he came for the medical examination on the 16th of July 2017. The complainant had taken time to regain his focus and respond to his surroundings. Moreover, the court had the opportunity to observe the complainant while he gave evidence in court. He was slow and struggled to retain his focus during the course of giving his evidence. The victim impact report provides the details of the emotional and psychological effect that this offence has caused to the complainant. It has adversely changed the complainant to a withdrawn, scared and paranoid child from a fun loving, active happy young boy. In view of these facts, I find the level of harm in this offence are significantly high.

It was proved that you have lured the complainant come to you by offering him ice blocks. You have then manipulatively executed your heinous plan of raping this young complainant. Therefore, I am satisfied that this is premeditated crime. Furthermore, it was proved that you have physically assaulted and verbally abused the complainant after committing this disgraceful crime. I accordingly find the level of culpability in this offence is also significantly high.

Starting Point

Having taken into consideration, the seriousness of the crime, the purpose of the sentence, the level of culpability and harm, I find this is an appropriate case to fix a higher starting point. I accordingly select fifteen (15) years as the starting point.

Aggravating and Mitigating Factors

You have breached the trust that the complainant had in you not only as an elderly relative but also as a neighbour. He trusted you that you would not harm him in this manner, and came to the house to get ice blocks. Instead of caring and looking after this small young complainant, you manipulatively used the opportunity to satisfy your lustful sexual gratification. The complainant was five years old and had no parent as his mother has passed away and father had left him. You used the vulnerability of this child to fulfil your most disgraceful sexual desire. The age difference between you and the complainant is substantially high. He was just five years old and you were 25 years old at the time this offence was taken place. By committing this crime, you have exposed this five year old child to the sexual activities, at the very young age, thus preventing him to have a natural growth of maturity in his life.

It was proved during the course of the hearing that you have approached the grandmother of the complainant and requested her to inform the court that the complainant was not available to give evidence. By doing that you have tried to prevent the complainant to get the justice for the dreadful offence that you have committed on him.

I consider these grounds as aggravating factors in this offending.
The learned counsel for the defence in her mitigation submissions submitted your personal and family background, which I do not find any mitigatory value.

The learned counsel for the defence submitted in her submission that you are a first offender, hence, you are entitled to a substantive discount. However, the learned counsel for the prosecution suggested otherwise, stating that your previous good character has allowed you to freely move around the village and access to the kids in order to execute your crime. I find that your previous good character, specially the fact that you have not been tainted with any previous conviction to an offence of sexual nature, would have definitely allowed you to freely move around in the community without any suspicion of risk. The community has perceived you as a man of good character and not as a child paedophile and allowed you to feely moved in the community. Moreover, there is no suggestion that you have significantly contributed to the community or have any reputation in the community as per Section 5 of the Sentencing and Penalties Act. The letter given by the pastor, has no much value as it only states your membership and involvement in the church. Therefore, I do not think that the previous good character has any significant mitigatory value. I accordingly find that you are not entitled to any significant discount for your good character.

In view of the reasons discussed above, I increase further four (4) years for the aggravating factors to reach interim period of nineteen (19) years. In view of above discussed reasons in relation to mitigation and the outrageous nature of this crime, I do not find any mitigatory ground in your favour. I accordingly reach a period of nineteen (19) years imprisonment as your final sentence.

Having considered the seriousness of this crime, the purpose of this sentence, your age and opportunities for rehabilitation, I find seventeen (17) years of non-parole period would serve the purpose of this sentence. Hence, you are not eligible for any parole for a period of seventeen (17) years pursuant to Section 18 (1) of the Sentencing and Penalties Act.

Head Sentence

Accordingly, I sentence you for a period of nineteen (19) years imprisonment for the offence of Rape, contrary to Section 207 (1) and (2) (a) and (3 ) of the Crimes Act. Moreover, you are not entitled to any parole for a period of seventeen (17) years pursuant to Section 18 (1) of the Sentencing and Penalties Act.

Actual Period of The Sentence

You have been in remand in custody for this case for a period of nearly one (1) year and three (3) months as you were not granted bail by the court. In pursuant of Section 24 of the Sentencing and Penalties Act, I consider the period of one (1) year and three (3) months as a period of imprisonment that have already been served by you.

Accordingly, the actual sentencing period is seventeen (17) years and nine (9) months imprisonment with non-parole period of fifteen (15) years and nine (9) months.

Thirty (30) days to appeal to the Fiji Court of Appeal.

R.D.R.T. Rajasinghe

Judge

At Suva
18^th December 2018

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