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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
Crim. Case No: HAC 228 of 2024
STATE
v
VILIKESA KAUTANAINIMAKIBAU
Counsel: Ms. L. Latu for the State
Mr. A. Waqanivavalagi for the Accused
Date of Mitigation/Sentence Submission: 27 February 2025
Date of Sentence: 18 March 2025
SENTENCE
Caveat – The victim shall herein be referred as ‘EKO’ pursuant to the Name Suppression Order.
COUNT ONE
Statement of Offence
SEXUAL ASSAULT: Contrary to section 210(1)(a) of the Crimes Act 2009.
Particulars of Offence
VILIKESA KAUTANAINIMAKIBAU, on the 2nd day of September 2024, at Lutu village, Naitasiri, in the Eastern Division, unlawfully and indecently assaulted EKO, by touching her vulva / vagina.
COUNT TWO
Statement of Offence
RAPE: Contrary to section 207(1) and (2)(b) of the Crimes Act 2009.
Particulars of Offence
VILIKESA KAUTANAINIMAKIBAU, on the same occasion as Count 1 above, penetrated the vulva / vagina of EKO, with his fingers, without consent.
COUNT THREE
Statement of Offence
SEXUAL ASSAULT: Contrary to section 210(1)(a) of the Crimes Act 2009.
Particulars of Offence
VILIKESA KAUTANAINIMAKIBAU, on the same occasion as Count 1, unlawfully and indecently assaulted EKO, licking her vulva / vagina.
COUNT FOUR
Statement of Offence
SEXUAL ASSAULT: Contrary to section 210(1)(a) of the Crimes Act 2009.
Particulars of Offence
VILIKESA KAUTANAINIMAKIBAU, on the same occasion as Count 1 above, unlawfully and indecently assaulted EKO, touching her naked breast.
COUNT FIVE
Statement of Offence
SEXUAL ASSAULT: Contrary to section 210(1)(a) of the Crimes Act 2009.
Particulars of Offence
VILIKESA KAUTANAINIMAKIBAU, on the same occasion as Count 1 above, unlawfully and indecently assaulted EKO, kissing and sucking her naked breast.
COUNT SIX
Statement of Offence
INDECENT ASSAULT: Contrary to section 212(1) of the Crimes Act 2009.
Particulars of Offence
VILIKESA KAUTANAINIMAKIBAU, on the same occasion as Count 1 above, unlawfully and indecently assaulted EKO, by kissing her lips.
Brief facts
On 2 September 2024 at about 12.30pm, the complainant EKO was at home in Lutu village, Naitasiri, doing chores and after cooking lunch she decided to return a skirt belonging to her cousin and friend Elenoa who is the accused’s daughter. The complainant went to Elenoa’s house and upon reaching that house, she saw the accused standing by the door and told him that she was returning Elenoa’s skirt, to which the accused responded by telling the complainant to enter the house, and at that very moment the complainant thought that the accused wanted to give her something inside his house. Upon entering the accused’s house, the accused then immediately grabbed the complainant’s hand firmly and closed the door, causing the complainant to feel anxious and scared, but the accused told her not to be scared. The accused then took the complainant to a room in the house and pushed the complainant on to the bed. The complainant remained scared, wearing a t-shirt, panty, dark blue pants, with a sarong. While the complainant was on the bed, the accused then removed her pants and began touching her vulva/vagina using his right hand, then inserted his right fingers penetrating her vulva/vagina, and told her not to tell anyone. The accused also used his tongue to lick the complainant’s vulva/vagina, and simultaneously kissed, sucked and touched her naked breast with his hands, and also kissed the complainant’s lips. After the accused had raped, sexually assaulted and indecently assaulted the complainant, the complainant then grabbed her clothes and ran towards the living room saying that her mother’s coming, and the accused opened the door and told her to return in the afternoon. The complainant was not pleased and she never consented to what the accused had done to her in his house. The complainant immediately proceeded to her home crying, and upon reaching her home she took hold of her father’s phone and dialed 919 but disconnected that call due to being scared. This was witnessed by the complainant’s mother Sereana Lewenisou (PW1) who was also at home setting their clothes in the sitting room, and saw the complainant pick her husband’s phone, dialed the police number, and heard someone speaking via the phone, but the complainant disconnected the phone call. Sereana Lewenisou (PW1) then told the complainant not to play with the police number, and the complainant started crying, to which Sereana Lewenisou (PW1) reacted by asking the complainant as to whether she missed her friend Elenoa, even though she was not aware that Elenoa had left for Suva on the 12 noon bus with her mother and siblings. The complainant responded by nodding her head, and then Sereana Lewenisou (PW1) asked her as to why exactly she was crying, to which the complainant responded telling her mother Sereana Lewenisou (PW1) that the accused had inappropriately touched her. Having heard the complainant’s response, Sereana Lewenisou (PW1) then took hold of the complainant’s hand and immediately proceeded to the accused’s house to confront him. Upon confronting the accused, he initially admitted that he only kissed the complainant. Sereana Lewenisou (PW1) then asked the complainant, in the presence of the accused, if the accused had only kissed her, to which the complainant shook her head to indicate her response as ‘No’. Sereana Lewenisou (PW1) continued asking the complainant as to whether the accused removed her pants, to which the complainant affirmed, and immediately thereafter the accused began to say sorry and admitted that he did it, and also told Sereana Lewenisou (PW1) to get her husband so that he can ask for forgiveness.
The rape, sexual assault and indecent assault complaint was subsequently reported to the police on the same day i.e. 2 September 2024. The complainant was also medically examined on the same day by Dr. Alusio Navosailagi who concluded, as per the medical report dated 2.09.2024 at D(16): Summary and conclusions, ‘A female alleged to have been sexually assaulted by uncle. Mechanism – digital vaginal penetration. The injuries are consistent with mechanism of injury’. Refer to Dr. Alusio Navosailagi’s medical report dated 2.09.2024 adduced by prosecution – Annexure ‘A’.
The accused was then arrested on 3 September 2024 and cooperated with the police. He was interviewed under caution on 3 September 2024 and admitted that he: (i) touched the complainant’s vaginal area when she was still clothed; (ii) removed the complainant’s clothing and licked her vagina for five (5) minutes; and (iii) used his right hand to touch the complainant’s vagina and her breast, sucked her breast and kissed her lips. Refer to Record of interview of Vilikesa Kautanainimakibau dated 3.09.2024 adduced by prosecution - Annexure ‘B’.
The accused is not a first offender. Refer to the Previous Conviction record of Vilikesa Kautanainimakibau adduced by prosecution - Annexure ‘C’.
Rape sentencing analysis – Count 2
[24] 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 discretion taking into account the age group of these child victims. I do not for myself believe that judicial discretion should be shackled. But it is obvious to state that crimes like these on the youngest children are the most abhorrent.
[25] The tariff previously set in Raj v The State [2014] FJSC 12; CAV0003.2014 (20th August 2014) should now be between 11 – 20 years imprisonment. Much will depend upon the aggravating and mitigating circumstances, considerations of remorse, early pleas, and finally time spent on remand awaiting trial for the final sentence outcome. The increased tariff represents the denunciation of the courts in the strongest terms.
[25] In this case we are informed of pain having been caused to the 9 year old girl, but not as to whether she had required any medical treatment thereafter or whether she had suffered any psychological distress. Courts will be wise therefore to tread carefully before downgrading the type of penetration suffered, and instead to focus on the overall impact on the victim. The real consideration is, whatever the intruding object used, how horrific were the overall circumstances of the crime to the victim.
[26] Factors to be considered in such cases could be:
(a) whether the crime had been planned, or whether it was incidental or opportunistic;
(b) whether there had been a breach of trust;
(c) whether committed alone;
(d) whether alcohol or drugs had been used to condition the victim;
(e) whether the victim was disabled, mentally or physically, or was specially vulnerable as a child;
(f) whether the impact on the victim had been severe, traumatic, or continuing;
(g) whether actual violence had been inflicted;
(h) whether the injuries or pain had been caused and if so how serious, and were they potentially capable of giving rise to STD infections;
(i) whether the method of penetration was dangerous or especially abhorrent;
(j) whether there had been a forced entry to a residence where the victim was present;
(k) whether the incident was sustained over a long period such as several hours;
(l) whether the incident had been especially degrading or humiliating;
(m) If a plea of guilty was tendered, how early had it been given. No discount for plea after victim had to go into the witness box and be cross-examined. Little discount, if at start of trial;
(n) Time spent in custody on remand;
(o) Extent of remorse and an evaluation of its genuineness;
(p) If other counts or if serving another sentence, totality of appropriate sentence.
I have been traumatized by your actions and have been seen differently by the community. I am afraid being amongst boys or men as the mentally of being abused is always on my mind. My lifestyle have changed, I find myself lost in a corner and being on my own, I’ve lost having friends by my side. Please do not do this to any other girl or woman again.
The Supreme Court in Aitcheson v State (supra) at paragraph 72 held, ‘[72] [u]ndoubtedly it has been accepted by the society that rape is the most serious offence that could be committed on a woman. Further it is said that; “A murderer destroys the physical body of his victim; a rapist degrades the very soul of a helpless female.”
Early guilty plea
[15] The principle in Rainima must be considered with more flexibility as Mataunitoga indicates. The overall gravity of the offence, and the need for the hardening of hearts for prevalence, may shorten the discount to be given. A careful appraisal of all factors as Goundar J has cautioned is the correct approach. The one third discount approach may apply in less serious cases. In cases of abhorrence, or of many aggravating factors the discount must reduce, and in the worst cases shorten considerably.
Time spent in custody
Sexual assault sentence analysis – Counts 1, 3, 4 and 5
210-(2) The offender is liable to a maximum penalty of 14 years imprisonment for an offence defined in sub-section (1)(a) or (1)(b)(i) if the indecent assault or act of gross indecency includes bringing into contact any part of the genitalia or the anus of a person with any part of the mouth of a person.
[30] The offence of Sexual Assault in terms of section 210(1) of the Crimes Act carries a maximum penalty of 10 years imprisonment.
[31] In the cases of State v Abdul Khaiyum [2012] FJHC 1274; Criminal Case HAC 160 of 2010 (10 August 2012) and State v Epeli Ratabacaca Laca [2012] FJHC 1414; HAC 252 of 2011 (14 November 2012); Justice Madigan proposed a tariff between 2 years to 8 years imprisonment for offences of Sexual Assault in terms of section 210(1) of the Crimes Act.
[32] It was held in State v Laca (supra), “The top of the range is reserved for blatant manipulation of the naked genitalia or anus. The bottom range is for less serious assaults such as brushing of covered breasts or buttocks.”
“A very helpful guide to sentencing for sexual assault can be found in the United Kingdom’s Legal Guidelines for Sentencing. Those guidelines divide sexual assault offending into three categories:
Category 1 (the most serious)
Contact between the naked genitalia of the offender and naked genitalia, face or mouth of the victim.
Category 2
(i) Contact between the naked genitalia of the offender and another part of the victim’s body;
(ii) Contact with the genitalia of the victim by the offender using part of his or her body other than the genitalia, or an object;
- (iii) Contact between either the clothed genitalia of the offender and the naked genitalia of the victim; or the naked genitalia of the offender and the clothed genitalia of the victim.
Category 3
Contact between part of the offender’s body (other than the genitalia) with part of the victim’s body (other than the genitalia).”
Indecent assault sentence analysis – Count 6
8. The maximum penalty for the offence of indecent assault is 5 years imprisonment. The accepted tariff is a sentence between 1 to 4 years imprisonment (Rokota vs. The State, criminal appeal no. HAA 0068 of 2002).
From these cases a number of principle emerge. Sentences for indecent assault range from 12 months imprisonment to 4 years. The gravity of the offence will determine the starting point for the sentence. The indecent assault of small children reflects on the gravity of the offence. The nature of the assault, whether it was penetrative, whether gratuitous violence was used, whether weapons or other implements were used and the length of time over which the assaults were perpetrated, all reflect on the gravity of the offence. Mitigating factors might be the previous good character of the accused, honest attempts to effect apology and reparation to the victim, and a prompt plea of guilty which saves the victim the trauma of giving evidence.
These are the general principles which affect sentencing under section 154 of the Penal Code (now repealed). Generally, the sentence will fall within the tariff, although in particularly serious cases, a five (5) year sentence may be appropriate. A non-custodial sentence will only be appropriate in cases where the ages of the victim and the accused are similar, and the assault of a non-penetrative and fleeting type. Because of the vast differences in different types of indecent assault, it is difficult to refer to any more specific guidelines than these.
Totality principle of sentencing
Non-parole period
Breach of suspended sentence
Conclusion
Sentence
Permanent DVRO, standard non-molestation, non-contact orders
Orders of the Court
Hon. Justice P. K. Bulamainaivalu
Puisne Judge
At Suva
18 March 2025
Solicitors
Office of the Director of Public Prosecutions for the State.
Legal Aid Commission for the Accused
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