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State v Tawake [2015] FJMC 42; Criminal Case 263.2011 (27 March 2015)

IN THE MAGISTRATES COURT OF FIJI
AT TAVEUNI

Criminal Case No: - 263/2011

STATE

V

JOELI NOKA TAWAKE

Counsel : Ms.Low for the State
Ms.Devi (LAC) for the Accused

Date of Sentence : 27th March 2015

SENTENCE

1. JOELI NOKA TAWAKE, 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:
   

The accused Joeli Noka Tawake a 24 years old farmer at Yacata Island of Cakaudrove and the victim is Seleima Sese a 15 years old student of Yacata Island Cakaudrove. The victim's date of birth was 30th May 1996. Both the accused and the victim were living at Yacata Island and on the 31st day of December 2010 at about 12 midnight the victim was celebrating new years with her friends when the accused took her to a vacant house belonging to one Tomasi undressed her and undressed himself and then penetrated the victim's vagina with his penis. The accused than told the victim not to tell her father and the victim said she will not tell her father.

Secondly, on the 1st day of January 2011 at about 9.00pm the victim was again beating drums in the village celebrating new year's with her friends when the accused took her again to the vacant house of Tomasi undressed her and removed his pants and underwear and penetrated her vagina with his penis whilst the victim was lying on the floor. After the sexual intercourse the victim got dressed and went to her home.

Thirdly, on the 2nd day of January 2011 at about 1.00am the accused again took the victim to the vacant house belonging to Tomasi and fondle with her breasts undressed her and then also undressed himself and then penetrated her vagina with his penis with her consent. The victim left home after the sexual intercourse.

Matter was reported to police and the accused was interviewed under caution and was charged for 3 counts of Rape and later amended to 3 counts of Defilement of a girl between 13 and 16 years of age.

Accused has no previous conviction.

4. I am satisfied that your plea is unequivocal and convicts 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 [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). In the case of Donumainasuva CA 32/2001, Shameem, J said "The offence is clearly designed to protect young girls who have entered puberty and experiencing social and hormonal changes, from sexual exploitation.

Aggravating Factors

7. I find no aggravating factors in this case apart from the facts that falls in to the elements of the offence.
   

Mitigating factors

8. You are young offender as well as first offender. You seeks forgiveness from this court and remorseful. Also you are married with a child. You also pleaded guilty without going for a trial saving the victim from giving evidence.
   
9. After considering the facts in this case I select 18 months as my starting point for each count and deduct 06 months for all the mitigating factors to reach 12 months imprisonment.
   
10. Considering the totality principle these are concurrent to each other. You have made a traditional apology which was accepted by the family of the victim. Also the State admitted that at the time of the offending there was a relationship between you and the victim. There is only a slight age differences between the parties which is another advantage factor for you
    
11. Therefore I find this is a fit and a proper case to give a suspend sentence which would enable you the chance to reform. Accordingly you are sentenced to 12 months imprisonment for this charge and this will be suspended for 03 years.
    
12. If you commit any offences during next 03 years you can be charged under section 28 of the Sentencing and Penalties Decree.
    
13. 28 days to appeal
    

H.S.P.Somaratne
Resident Magistrate