State v Naidu [2004] FJHC 492; HAA0080.2004L (29 October 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0080 OF 2004L

THE STATE
Appellant

v.

RAJESH KRISHNA NAIDU
f/n Munsami Naidu
Respondent

Mr. N. Nand for the appellant
Respondent in person

Hearing: 22 October 2004
Judgment: 29 October 2004

JUDGMENT

On the 14^th May 2004, the respondent pleaded guilty before the Rakiraki Magistrates Court to the offence of incest by male and was convicted and on the 27^th May 2004, the Learned Magistrate sentenced the respondent to imprisonment for a term of 2 years.

The State appeals the sentence upon the basis that it was manifestly lenient, having regard to the circumstances of the case.

Statement of Offence

INCEST BY MALE: Contrary to section 178(1) of the Penal Code, Cap. 17.

Particulars of Offence

RAJESH KRISHNA NAIDU s/o Munsami Naidu, between the 1^st day of December 2003 and the 31^st day of December 2003, at Rewasa, Rakiraki in the Western Division, had carnal knowledge of a female person namely MONISHMA KARISHMA LATA d/o Rajesh Krishna Naidu, who to his knowledge was his own daughter.

The facts as presented to the Learned Magistrate and accepted by the respondent were that between the 1^st December 2003 and the 31^st December 2003, the complainant was alone at home with her father, the respondent. The respondent was 32 years of age, a labourer of Rewasa, Ra. The respondent called his daughter to the bedroom and made her lay on the bed and there had sexual intercourse with her.

The complainant at first said no but when the respondent persisted, she did not resist. After the incident, the respondent told the complainant not to tell anyone about the incident. The complainant did not inform anyone however on the 13^th May 2004, she went to the hospital for treatment of abnormal menstruation. The doctor then ascertained that she was 20 weeks pregnant. The matter was then reported to the police. The respondent when interviewed under caution admitted the allegation.

In mitigation before the Learned Magistrate, the respondent said that he was sorry for what he had done and that he could not get sexual satisfaction from his wife, who was sickly and weak. He further said that he had 4 children with the complainant being the eldest daughter and a Form 3 student at Penang Sangam High School. The other children were attending primary school, 1 in class 6, another one in class 5 and the youngest one being 1 year old. The respondent is a first offender and pleaded guilty on the first opportunity.

The Learned Magistrate in his judgment on sentence said:

“Rajesh, you have committed a very serious offence and it carries a maximum of 7 years imprisonment.”

The Learned Magistrate went on to describe the seriousness of the offence and in particular, highlighted the fact that the respondent had got his daughter pregnant. The Learned Magistrate then adopted the starting point of 3 years imprisonment and made a reduction for mitigation and an increase for aggravation, which resulted in an ultimate sentence of 2 years imprisonment.

Section 178(1) of the Penal Code was amended by Act No. 7 of 2003 and the relevant maximum penalty was increased from 7 years to 20 years imprisonment. Unfortunately, the Learned Magistrate had sentenced the respondent on the basis of the maximum penalty that previously existed and not for the maximum penalty that did in fact exist at the relevant time.

Prior to the amendment, it was considered that sentences between 5 years and 3 years would be appropriate depending upon the aggravating and mitigating factors – State v Viliame Tamani – HAC0007 of 2003S.

It would seem that this range should now be between 15 years and 9 years. If 15 years is taken as a starting point and one-third reduction is given for the early plea of guilty, the resultant sentence is then 10 years.

There is a significant aggravating factor in this matter, in that the respondent made his daughter pregnant.

On behalf of the respondent, a letter was tendered to the court written by the respondent’s wife and signed by her, his daughter and his father. In it, the respondent’s wife confirms that the respondent is the only breadwinner in a very poor family and also confirms that she, the wife, is sickly and that the husband was looking after her and the 4 children together with his father. She highlights in the letter the difficulties in sending the children to school and asks for mercy and consideration and forgiveness on behalf of her husband. She also says that a long sentence will not help him. It is patently clear that a long sentence will not help the family of the respondent.

I am of the opinion that the aggravating factor of the respondent, having made his daughter pregnant, requires that the sentence be increased from 10 years to 12 years. However, the significant mitigation particularly the impact that a lengthy jail sentence will have on the family warrants a significant reduction in the sentence. But there needs to be a very significant deterrence in any sentence for this offence.

The seriousness of the offence is reflected in the Parliament increasing the maximum penalty from 7 years to 20 years in 2003 and there is therefore an obligation on the court to reflect society's attitude in this regard.

The sentence of the Learned Magistrate is quashed and in lieu thereof, the respondent is sentenced to imprisonment for a term of 9 years to date from the 27^th May 2004.

JOHN CONNORS
JUDGE

At Lautoka
29 October 2004