State v Chand [2011] FJHC 365; HAC050.2010 (3 June 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC 050 of 2010

BETWEEN:

STATE
Prosecution

AND:

SACHEND CHAND
The Accused

Dates of Trial: 30-31 May and 01 June 2011
Date of Conviction: 02 June 2011
Date of Submissions: 02 June 2011
Date of Sentence: 03 June 2011

Ms L Vaiteitei with Mr S Babitu for the State
Mr T Tarere of Legal Aid Commission for the Accused

• Name of the victim suppressed on an application by the prosecution and she will be referred to as BX hereafter as and when necessary.
  

SENTENCE

1. The accused stood charged for having committed the offence of rape on one BX on 13 June 2010. After the trial that lasted for three days, the assessors returned unanimous opinions of guilty against the accused. I, having considered the evidence and my summing up on law, concurred with the opinions of the assessors and convicted the accused of the offence as charged under Section 207 (2) (c) of the Crimes Decree 44 of 2009.
   
2. The charge was sequel to an act of penetration of the mouth of BX with the penis of the accused. The accused, who stays at home during daytime because of his security duty at night, was fifty years of age.
   
3. The victim, on the other hand, was only four years, who had suffered a great loss with the untimely death of her father when she was only three months old. And, she became destitute as her mother, too, left her after some time from the death of the father. Since then, the victim was under the care of her grandmother.
   
4. The victim along with her grandmother came to reside in a village about a year back where the accused was only couple of doors away. The victim with the other children of the neighbourhood used to play at the place of the accused and got familiar with him and his place of residence. This familiarity could be seen as the victim, admittedly, called the accused Babban Dada or grandfather.
   
5. On 13 June 2010, the grandmother sent the victim to the accused's place to bring back her shoes, which was found lying at the rear of the house and waited for her return under a tree in her premises. The victim, after a while, came to the grandmother and said that the accused did 'something'. Upon enquiry, the victim revealed that the accused undressed himself and removed her pyjama down, rubbed his penis around her genitalia and put his penis into her mouth. After the accused took his penis out, she saw the accused 'piss[ing]' on the bed meaning that the accused had ejaculated. She saw the accused wiping out the substance which looked 'white' in colour with a piece of cloth. The accused thereafter told the victim not to reveal the incident to anyone.
   
6. It is on the above facts that the accused stands convicted under Section 207 (2) (c) of the Crimes Decree 2009, which expanded the traditional scope of the offence of rape to include inter alia the instances of penetration of the mouth of a victim without the consent. In this case, as provided for under Section 207 (3) of the Decree and, as admitted by the accused, consent became immaterial as the victim-BX was only four years of age and incapable of giving consent.
   
7. The offence of rape is very serious in that it is triable only by the High Court, which attracts the punishment of life imprisonment under Section 207 (1) of the Decree. In addition to the severity that could be gauged with reference to the sentence, sexual offences by their very constitution are serious in nature because law recognises no exculpatory or mitigatory defences. Courts, time and again, have emphasized the requirement of deterrence in imposing sentences on convicts for rape of children.
   
8. Accordingly, the range of sentence for rape of children has been set between 10-15 years by sentencing guidelines. Madigan J. commenced his starting point of sentence at 12 years to punish a rape convict where the victim was a fourteen year old step-daughter and imposed a term of 13 years with a non-parole period of 10 years (State v Mario Tauvoli; HAC 027/2011).
   
9. Justice Priyantha Fernando in State v Anand Abhay Raj (HAC 09/2010) applied a similar range of sentence to deal with an offender who had raped a ten year old step daughter-and picked-up 12 years as the starting point to reach a sentence of 16 years with. Justice Fernando, who imposed a mandatory 12 year period of sentence in that case, lent strength to the words of Goundar J. in State v AV (2009) FJHC 24 concerning the offence of rape of children, where it was held:
   

Rape is the most serious form of sexual assault... Society cannot condone any form of sexual assaults on children...sexual offenders must be deterred from committing this kind of offences

10. Learned counsel for the State and for the accused accepted the above range of sentence for the rape of children. They also addressed court on aggravating and mitigating circumstances in order to assist court in regard to the imposition of an appropriate sentence on the accused. I have considered their submissions very carefully in light of the provisions of the Sentencing and Penalties Decree in determining the sentence.
    
11. The victim in this case was only four years of age at the time of the incident. She was just stepping into her formative ages and moving around playing. The accused, who was fifty, had three grown up children, two of them were married. The accused had four grandchildren from the two married daughters out of whom two were in or about the same age as that of the victim. There cannot be any doubt that the accused, in the circumstances, knew the value of children and that they needed protection and shelter from adults. Despite that the accused raped the little girl, who was in the age group of his grandchildren to satisfy his unnatural lust.
    
12. The accused's engagement in the unilateral acts of sexual activity with a little girl who was insensitive to such activity is most abhorrent. The accused, nevertheless, continued with the same, as evidence unravelled, until he reached the climax of ejaculation. His moral culpability was manifested when he told the victim not to tell the incident with a view to conceal his dastardly act from the whole world and escape the long arm of the law.
    
13. These kinds of immoral acts on a little girl in the calibre of BX are bound to yield adverse results and psychological trauma, the effect of which is indeed difficult to foresee and assess. This kind of depravity should be frowned upon to save little children for their own future; and, men of the accused's calibre should not be allowed to deny the children of their legitimate place in the community. In passing down the sentence in a case of this nature, deterrence is, therefore, of paramount importance.
    
14. I am, in the circumstances, inclined to pick up a starting point of 14 years for the sentence in this case to reflect that the victim is very small compared to those in the two cases referred to above. I add four years for the considerations in paragraphs 10 and 11 above, which I consider as seriously aggravating circumstances to enhance the sentence to reach 18 years.
    
15. I do not see favourable circumstances to mitigate the sentence apart from the fact that the accused is a first offender. Although, the offence for which he is convicted now, is so serious that his previous good behaviour should not have earned him a discount, I nevertheless decide to reduce his sentence by 15 months. The accused had been on remand nearly for nine months, which should be deducted from his sentence. I, in the result, arrive at a term of 16 year-imprisonment.
    
16. The accused has not shown any remorse or repentance. On the contrary, he relentlessly castigated the grandmother saying that she was making up a false allegation at the expense of the little girl to get rid of him of his land without any evidence to found such a serious allegation. This added, in my view, insult to the injury. While the court recognises that the accused was entitled to advance any proposition to advance his case, court equally recognises that it should show its displeasure by showing no mercy in the matter of sentence when such allegations are found to be totally ill-founded as in this case. The accused, in his mitigation, also did not rely on any other circumstance that led him to this unnatural lust.
    
17. Accordingly, I will determine that a 16 year period of imprisonment on the accused is appropriate to meet the principles and objectives of the Sentencing and Penalties Decree. The final sentence, therefore, is 16 years of imprisonment.
    
18. Acting under Section 18 (1) of the Sentencing and Penalties Decree, I order that the accused shall not be eligible for parole until he serves 14 years in imprisonment.
    

Priyantha Nawana
Judge

High Court
Lautoka
03 June 2011