State v Gounder - Sentence [2011] FJHC 449; HAC094.2010 (18 August 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 094 OF 2010

STATE

vs

GANESH GOUNDER

Mr. S. Qica for the State
Mr. H.A. Shah (L.A.C) for Accused

Date of Hearing : 17 August 2011
Date of Sentence : 18 August 2011

SENTENCE
[Rape]

[1] The accused was charged with the following offence:

Statement of Offence

RAPE: Contrary to section 207(1), (2) (a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

GANESH GOUNDER s/o Kamlesh Gounder on the 9th day of August, 2010 at Lautoka in the Western Division, had carnal knowledge of (suppressed) without her consent.

[2] After trial he was found guilty of the offence in the unanimous opinion of three assessors. The Court concurred and he was convicted.

[3] The facts brought out at trial were that on the 9th August 2010, one Miss B (name suppressed) resident in Nadi, and then aged 14 initiated contact with the accused who was a carrier driver between Suva, Nadi and Lautoka. She had briefly met him when with friends about a month previously. When communicating with the accused he invited her to come to Lautoka for lunch with him because he was free in Lautoka that day. She had no money but he agreed to pay the fare. When she got to Lautoka he did pay her fare and then took her with him to buy spare parts for his van. He then took her to the Diamond Hotel where Miss B thought he was going to buy her lunch, but he rented a room and pushed her into it. He forced her on to the bed, covered her face with a pillow, removed her lower garments and raped her.

[4] After the rape he took her home to Nadi in a friend's van.

[5] The accused has six previous convictions which are not sexual but mostly driving offences and I disregard them for sentencing purposes. He is 37 years old, married with three children who are all schooling. His counsel submits that the rape was not violent, there were no injuries caused. It was not a prolonged ordeal and there is no evidence of post trauma disorder.

[6] Rape, especially rape of children, is a very serious offence and offenders must be punished with harsh sentences. The maximum penalty is life imprisonment. The accepted starting point for adult rapes is seven years (Kasim – AAU 002 of 1993) but rapes of children, such as Miss B was, attract sentences of between 10 to 15 years. As Goundar J. said in State v AV – HAC 192 of 2008:

"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 offence."

[7] I take as a starting point a term of thirteen years; that adequately reflects the abuse of the friendship this young girl thought she had found in the accused. He is married with children and his evident lust for a recently known young girl is a total abuse of his responsibilities to his own family. For this aggravating feature I add two years to the term bringing the sentence to 15 years. The mitigation advanced by his counsel has force in part. He was not violent and he did not injure her. He showed some degree of kindness in seeing that she got home by escorting her to Nadi in a friend's carrier. For these mitigating features I deduct the two years added. It is also a mitigating factor that he was encouraged in his lust to some extent by the girl texting him often in the days leading up to this offence and on the day in question. He responded to those overtures by inviting her to lunch in Lautoka but it certainly did not entitle him to think he could rape her as he did. For that limited mitigation I deduct one further year.

[8] The total sentence the accused will serve will be one of twelve years, with a minimum term to be served before parole of nine years.

Paul K. Madigan
JUDGE

At Lautoka
18 August 2011