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State v Biusaya [2015] FJMC 33; Criminal Case 282.2015 (9 March 2015)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA

Criminal Case No: - 282/2015

STATE

V

TEVITA BIUSAYA

PC Josuha for the Prosecution
Ms. Boseiwaqa (LAC) for the Accused
Date of Sentence : 09th March 2015

SENTENCE

1. TEVITA BIUSAYA , you were charged in this Court for 03 counts of Defilement of Young Person between 13 and 16 years contrary to section 215 of the Crimes Decree No.44 of 2009.
   
2. You pleaded guilty for the charge and also admitted the summary of facts presented by the State.
   
3. Summary of facts states the following:
   

Count One: DEFILEMENT

➢ On the 15th of November 2014 at Namadai Settlement, Namadi Heights, Temalesi Vuaniqumu [A-1] 15 years, Form 5 student residing at Namadai Settlement, Namadi Heights was at home cleaning the house when her uncle TEVITA BIUSAYA [Accused] 40 years, self-employed of Namadai Settlement went to [A-1] and asked her to have sexual intercourse with him.

➢ [A-1] went to the [Accused] room took off her clothes and had sexual intercourse with the [Accused] as the [Accused] wife was not at home.

Count Two: DEFILEMENT

➢ On the 25th of November 2014 at Namadai Settlement, Namadi Heights Temalesi Vuaniquma [A-1] 15 years, Form 5 student residing at Namadai Settlement, Namadi Heights was at home when her uncle TEVITA BIUSAYA [Accused] 40 years, self-employed of Namadai Settelemtn went to [A-1] and asked her to have sexual intercourse with him.

➢ [A-1] went to the [Accused] room took off her clothes and had sexual intercourse with the [Accused] as the [Accused] wife was not at home.

Count Three: DEFILEMENT

➢ On the 12th of December 214 at Namadai Settlement, Namadi Heights Temalesi Vuaniquma [A-1] 15 years, Form 5 student residing at Namadai Settlement, Namadi Heights was at home when her uncle TEVITA BIUSAYA [Accused] 40 years, self-employed of Namadai Settlement came to [A-1] and asked her to have sexual intercourse with him.

➢ [A-1] went to the [Accused] room took off her clothes and had sexual intercourse with the [Accused] as the [Accused] wife was not at home.

➢ The matter reported by [A-1]'s aunty as Samabula Police Station.

➢ The [Accused] was interviewed under cautioned whereby he admitted having sexual intercourse with [A-1] and reconstruction of the scene was conducted in the presence of the [Accused] where he showed where they had sexual intercourse with [A-1]. [Please refer to Q & A numbers 40-43 and 106-109]

➢ The [Accused] is charged for 3 counts of: DEFILEMENT OF YOUNG PERSON BETWEEN 13 YEARS AND 16 YEARS OF AGE: contrary to Section 215(1) of the Crimes Decree No. 44 of 2009.

➢ The [Accused] is appearing in custody on 6/2/14.

4. I am satisfied that your plea was unequivocal and convict you for this charge.
   

The Law and the Tariff

5. The maximum penalty for this offence is 10 years imprisonment.
   
6. In State v Raibevu - Sentence [2012] FJHC 1040 his Lordship Justice Madigan stated:
   

"The maximum penalty for defilement is ten years' imprisonment; and the usual range of sentences is from a suspended sentence for protagonists in a "virtuous relationship" whilst the higher end of the range is for offenders who are older and in a position of trust. (Rokowaqa CA 37/2004, Kabaura HAC 117/2010). "

Aggravating Factors

7. You are a relative of the victim and breached the trust by committing these offences. There is also a significant age differences between you and the victim.
   

Mitigating factors

8. You are technically a first offender since your last conviction was in 2003. You seeks forgiveness from this court and remorseful. Also you are married with a child. You are looking after your elderly parents .
   
9. After considering the facts in this case I select 02 years as my starting point for each count and add 06 months for the aggravating factors to reach 30 months imprisonment . For the above mitigating factors I deduct 06 months and for pleading guilty at the earliest available opportunity after getting proper legal advice I deduct 1/3 to reach 16 months imprisonment.
   
10. Considering the totality principle these are concurrent to each other. I am mindful that pursuant to section 2692) (b) of the Sentencing and Penalties Decree your sentence can be suspended.
    
11. In this case in your mitigating submission you admitted there was no relationship between you and the victim apart from some mutual understanding . Also the significant age differences between you and the victim as well as your relationship shows more of a sexual exploitation of you on the victim which warrants a custodial sentence .
    
12. Accordingly you are sentenced to 16 months imprisonment for the offence of Defilement contrary to section 215 of the Crimes Decree No.44 of 2009
    
13. 28 days to appeal
    

H.S.P.Somaratne
Resident Magistrate