State v Kumar - Sentence [2011] FJHC 248; HAC043.2010L (6 May 2011)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 043 OF 2010L

STATE

Vs

MAHENDRA KUMAR

Counsels : Mr. T. Ravuniwa for the State
Accused in Person

Hearings : 2nd to 5th May, 2011
Summing Up : 5th May, 2011
Judgment: 5th May, 2011
Sentence: 6th May, 2011

SENTENCE

1. Mahendra Kumar, you have been found guilty, after a 4 days trial, of raping Nitasha Singh, at Labasa in the Northern Division, contrary to section 207(1) and section 207(2)(a) of the Crimes Decree 2009. Three assessors unanimously found you guilty as charged, and the Court concurred with them. As a result, you were convicted as charged.

2. The facts of your case were quite disturbing. In September 2010, Nitasha was doing Form 7 studies at Labasa College. She resided at Kawakawavesi, Seaqaqa, with her parents. At the time, Nitasha was a sickly girl, and she regularly suffered from severe headaches. Her parents sought divine intervention, through a "pundit" or priest, to pray over her and heal her.

3. You fraudulently held yourself out to be a "pundit" or priest, to Nitasha's family. They brought you to their home to pray for and heal Nitasha. She was 18 years old at the time, and you were 29 years old. You saw an opportunity to exploit this family, by enticing Nitasha to your home in Tabia, in the midst of canefields, and far away from everyone. You intended to make Nitasha your wife, and you intended to force yourself on her sexually.

4. Unbeknown to Nitasha's unsuspecting parents, you with the aid of your mother, took Nitasha to your home in Tabia. Nitasha wrongly believed that you were a genuine "pundit" and priest, and you were going to pray for her and heal her. As a result, she willingly came to your home on 23rd September 2010. She didn't know, she was walking into your trap.

5. Once in the comfort of your home, and knowing that Nitasha was far away from her family, you revealed your true self to her. You said, you were no "pundit" or priest. You then put into action your real intention of having unlawful sexual intercourse with her. You asked her for sex, but she refused. You then raped her on 24th September 2010. You then repeatedly raped her on 25th, 26th, and 27th September 2010. You continued to rape her until 11th October 2010, when her parents came and took her to the police station.

6. Rape is a serious offence. It carries a maximum sentence of life imprisonment. The tariff for rape is a sentence between 7 to 15 years imprisonment: see Mohammed Kasim v The State, Criminal Appeal No. 21 of 1993, Fiji Court of Appeal; Bera Yalimaiwai v The State, Criminal Appeal No. AAU 0033 of 2003, Fiji Court of Appeal; Navuniani Koroi v The State, Criminal Appeal No. AAU 0037 of 2002, Fiji Court of Appeal and Viliame Tamani v The State, Criminal Appeal No. AAU 0025 of 2003, Fiji Court of Appeal. The actual sentence passed will depend on the mitigating and aggravating factors.

7. The mitigating factors in your case were as follows:

(i) At the age of 29 years, this is your 1st offence;
(ii) You are the sole breadwinner in your family, looking after your sickly parents, and a brother and sister.

8. The aggravating factors in your case were as follows:

(i) Your intrusion into Nitasha's family was extremely devious and calculating. You unashamingly used religion as the perfect cover to invade and disrupt the peace and harmony of this unsuspecting family. Nitasha was a sickly 18 year old girl, at the time, and badly needed help to cure her sickness. It is not unusual in Fiji for families to seek divine intervention, to cure their sick. You well knew this, and you fraudulently pretended to be a "pundit" or priest, to win the confidence of this family. You succeeded in fraudulently winning Nitasha's family's confidence, and you cunningly put your evil intentions into action. At the age of 29 years old, you secretly planned to make Nitasha your wife, with or without her consent. You secretly planned to force yourself onto her sexually. You deviously used your mother to persuade Nitasha and her family for you to take her to your home, to be prayed over and healed. You well knew your home was in the midst of canefields, and far away from everyone – a perfect environment in which to subdue Nitasha's will to resist. You then set about to take away her virginity. Despite her continued protest, you raped her on 24th September 2010. Then you repeatedly raped her from then until 11th October 2010. You showed utter disregard for Nitasha's rights as a human being, and in fact, you treated her as a sex slave. For these misdeeds, you must pay with the loss of your freedom.

9. I start with a sentence of 7 years imprisonment. For the mitigating factors, I decrease the
7 years by 1 year, leaving a balance of 6 years. For the aggravating factors, I increase the
6 years by 7 years, leaving a total sentence of 13 years. I sentence you, Mahendra
Kumar to 13 years imprisonment. Your sentence is a warning to others, who wish to
follow your footsteps.

10. In summary, Mahendra Kumar, you are sentenced to 13 years imprisonment, and pursuant to section 18(1) of the Sentencing and Penalties Decree 2009, you are to serve a non-parole period of 9 years.

Salesi Temo
Acting Judge

Solicitors for the State : Office of Director of Public Prosecutions, Labasa
Solicitors for the Accused : In Person