State v Khan [2011] FJHC 628; HAC001.2011 (4 October 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC: 001 OF 2011

BETWEEN:

THE STATE

VS

ALFAZ KHAN

Counsel : Ms. S. Hamza for the State
Mr. S. Waqainabete for Accused

Date of Sentence : 04th October 2011

SENTENCE

1. Name and identity of the victim children were suppressed on the request of the State Counsel.

2. The Director of Public Prosecution had preferred following charges against the Accused above named.

"ALFAZ KHAN is charged with the following offences:

First Count

Statement of Offence (a)

SEXUAL ASSAULT: Contrary to Section 210 (1) (a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence (b)

ALFAZ KHAN s/o Farook Khan, on the 13th day of November 2010 at Nasinu in the Central Division, unlawfully and indecently assaulted SV.

Second Count

Statement of Offence (a)

SEXUAL ASSAULT: Contrary to Section 210 (1) (a) of the Crimes Decree No. 44 of 2009

Particulars of Offence (b)

ALFAZ KHAN s/o Farook Khan, on the 16th day of November 2010 at Nasinu in the Central Division, unlawfully and indecently assault SV.

Third Count

Statement of Offence (a)

SEXUAL ASSAULT: Contrary to Section 210 (1) (a) of the Crimes Decree No. 44 of 2009

Particulars of Offence (b)

ALFAZ KHAN s/o Farook Khan, on the 15th day of November 2010 at Nasinu in the Central Division, unlawfully and indecently assault PK.

Fourth Count

Statement of Offence (a)

SEXUAL ASSAULT: Contrary to Section 210 (1) (a) of the Crimes Decree No. 44 of 2009

Particulars of Offence (b)

ALFAZ KHAN s/o Farook Khan, on the 16th day of November 2010 at Nasinu in the Central Division, unlawfully and indecently assault JK.

Fifth Count

Statement of Offence (a)

RAPE: Contrary to Section 207 (1) (2) (c) of the Crimes Decree No. 44 of 2009

Particulars of Offence (b)

ALFAZ KHAN s/o Farook Khan, between 15th day of November 2010 to the 19th day of November 2010 at Nasinu in the Central Division, penetrated the mouth of AV with his penis, without the consent of the said AV."

3. When the case was taken up for trial the Accused pleaded not guilty to all Counts. Subsequently he obtained legal assistance from the Legal Aid Commission.

4. When the matter was fixed for trial, the accused on the day of trial changed his plea of not guilty and pleaded guilty to all Counts.

5. On the subsequent day the Accused withdrew his plea of guilty and entered a plea of not guilty.

6. When the matter was mentioned on the next day the Accused was absent and this Court was informed that he was remanded in connection with another case at Lautoka. A Production Order was issued on the Accused.

7. When the case was mentioned on the next date the Accused made a request that he would like to get treatment from St. Giles hospital. This Court referred the Accused for mental assessment and treatment if necessary.

8. The Consultant from St. Giles hospital submitted a report that the Accused is mentally fit and stable to understand the plea and stand for trial.

9. The Accused on the following date moved Court through his Counsel to change his plea. When the charge was read to the Accused had pleaded guilty to all five Counts.

10. The Accused admitted to the summary of facts submitted by the State. As per the Prosecution the summary of facts stands as follows:

"The accused is 29 years old. He was born on 29th November 1981. There are four complainants. The accused and the four complainants were neighbours.

The first complainant, SV is 11 years old and is the son of Mr. PV. He was born on 14th December 1999.

On the 13th day of November 2010, the accused called the first complainant to his house. The accused massaged his back. The accused told the first complainant to massage his stomach and back. The first complainant massaged his stomach and back. The accused told him to lie down on the bed. The first complainant lay down on the bed and the accused lay on top of him. The accused kissed him on his cheek and mouth. The accused gave him $1.00 and told him not to tell anyone.

On the 16th day of November 2010, the first complainant went to the accused's house. The accused hugged him. He told the first complainant to lie down on the bed. The first complainant lay down on the bed and the accused lay on top of him. The accused kissed him on his mouth. He felt the accused's hard penis on top of his penis. The accused got off him and showed him his penis. The accused asked the first complainant to feel his penis and he refused. The accused told him to take off his clothes and he refused. The accused gave him $2.00 and told him not to tell anyone.

The first complainant was medically examined by Dr. Asena Tuiketei on 22nd November 2010.

The second complainant, PK is 7 years old and is the son of GT. He was born on 25th November 2003.

On the 15th day of November 2010, the second complainant went to the accused's house. The accused told the second complainant to lie down on the bed. The second complainant lay on the bed and the accused lay on top on him. The accused kissed him on his mouth. The accused gave him $1.00.

The second complainant was medically examined by Dr. Evelyn Tuivaga on 22nd November 2010.

The third complainant, JK is 8 years old and is the son of GT. He was born on 11th July 2002.

On the 16th day of November 2010, the third complainant went to the accused's house. The accused kissed him on his mouth. The accused pulled down his pants and asked him to lick his penis. The accused gave him $1.00 and told him not to tell anyone.

The third complainant was medically examined by Dr. Evelyn Tuivaga on 22nd November 2010.

The fourth complainant, AV is 7 years old and is the son of PV. He was born on 3rd December 2003.

Between the 15th day of November 2010 to 19th day of November 2010, the accused asked the fourth complainant to suck his penis. The fourth complainant sucked the accused's penis. The accused sucked the fourth complainant's penis.

The fourth complainant was medically examined by Dr. Asena Tuiketei on 22nd November 2010.

The accused was caution interviewed by D/Cpl. 3684 Viliame Saumaisue on 21st December 2010.

The accused was charged by D/Cpl. 3659 Inoke Tui on 21st December 2010.

11. This Court after being satisfied with the plea to be unequivocal convicted the Accused on all five Counts.
    

12. Alfaz Khan you are now stand convicted on four counts of sexual assault and one count of Rape.

13. Section 210 of the Crimes Decree prescribes maximum penalty as 10 years imprisonment.

14. Now I consider the tariff to the offence. Justice Shameem in Rokota vs State
Criminal Appeal No. HAA0068 of 2002 identified some of those factors after reviewing earlier cases, although the list is not exhaustive. Shameem J said:

"From these cases a number of principles emerge. Sentences for indecent assault range from 12 months imprisonment to 4 years. The gravity of the offence will determine the starting point for the sentence. The indecent assault of small children reflects on the gravity of the offence. The nature of the assault, whether it was penetrative, whether gratuitous violence was used, whether weapons or other implements were used and the length of time over which the assaults were perpetrated, all reflects on the gravity of the offence. Mitigating factors might be the previous good character of the accused, honest attempts to effect apology and reparation to the victim, and a prompt plea of guilty which saves the victim the trauma of giving evidence.

These are the general principles which affect sentencing under section 154 of the Penal Code. Generally, the sentence will fall within the tariff, although in particularly serious cases, a five year sentence may be appropriate. A non-custodial sentence will only be appropriate in cases where the ages of the victim and the accused are similar, and the assault of a non-penetrative and fleeting type. Because of the vast differences in different types of indecent assault, it is difficult to refer to any more specific guidelines than these."

15. Considering the above case I commence your sentence for the 1st, 2nd, 3rd and 4th offence at 4 years imprisonment.

16. Section 207 of the Crimes Decree prescribes imprisonment for life for the offence of Rape. In William Christopher Millbery & two others vs. R (2002) (EWCA Crim. 2891 (09 December 2002) the Court held

"22. The Panel confirms the 15 years and upwards starting point for a campaign of rape. This is recommended where the offender has repeatedly raped the same victim over a course of time as well as for those cases involving multiple victims."

17. Further the Court observed in Millbery v R (supra):

"60....we note that the Court's prior to the guideline were regarding relationship rape as serious and deserving heavy sentence."

18. In Mohammed Kasim v The State (unreported) Fiji Court of Appeal Cr. Case No. 14 of 1993; 27 May 1994 the Court of Appeal observed (at p.6):

"We consider that in any rape case without aggravating or mitigating features the starting point for sentencing an adult should be a term of imprisonment of seven years. It must be recognized by the Courts that the crime of rape has become altogether too frequent and that the sentences imposed by the Courts for that crime must more nearly reflect the understandable public outrage. We must stress, however, that the particular circumstances of a case will mean that there are cases where the proper sentence may be substantially higher or substantially lower than that starting point."

19. In Lasaro Turagabeci (supra) Pain J. said:

"The Courts made it clear that rapists will be dealt with severely. Rape is generally regarded as one of the gravest sexual offences. It violates and degrades a fellow human being. The physical and emotional consequences to the victim are likely to be severe. The Courts must protect women from such degradation and trauma. The increasing prevalence of such offending in the community calls for deterrent sentences."

20. In a case with some similarities to this case Shameem J in The State v Navauniani Koroi (unreported) Cr. App. Case No. HAA0050.2002S arrived at a sentence of 12 years and explained:

"Taking the 7 years as the starting point, I increase the term by two years for the young age of the complainant, and a further three years for the fact that she is your daughter. I add a further year for the resulting pregnancy. I reduce the term by one year for the guilty plea and other mitigation..."

21. In The State v Peniasi Senikarawa (unreported) High Court Suva Cr. Case HAC0017.2002S; 20 May 2003 the Accused was sentenced to 11 years imprisonment. Shameem J started on the tariff at 7 years. The mitigation was that the Accused had a good character, was hardworking and struggling to raise his son single handed. But for being in breach of his position of trust to his 14 year old step-daughter, for the beatings he gave her, and for the fact that she had to give evidence twice, the court imposed a further 4 years.

22. In Inoke Buli v The State (unreported) Court of Appeal, Fiji Cr. App No. AAU0003.00S; 24 May 2001 the Court of Appeal approved a sentence of 12 years on an Accused for rape of his mentally retarded step-daughter. There was both breach of trust and the Accused had a prior conviction for rape as aggravating factors. The force however appeared to be minimal.

23. In State v Marawa (2004) FJHC 338; HAC0016T.2003S Justice A.H.C.T Gates (as then was):

"Since the victim was in a vulnerable category, the starting point in the tariff is 7 years. For each of the 6 significant aggravating factors that I have listed, I will add to the 7 years a further year each, making a total sentence on each of the 2 counts of 13 years. I have considered the question of totality, and the sentences on each count therefore will be served concurrently with each other."

24 In R v M V [1998] VSCA 68 (7 October 1998) the Supreme Court of Victoria – Court of Appeal held for the count of oral rape that the accused be sentenced to 6 years. We wish to draw attention to the fact here that the complainant was an adult and also the accused had been charged for other offences in this case. But the seriousness of the count of oral rape still reflects the sentence given and in the case before the Court this involves a child.

25. Further the Court observed in Millbery v R (supra):

"60....we note that the Court's prior to the guideline were regarding relationship rape as serious and deserving heavy sentence."

26. Considering all I commence your sentence at 12 years imprisonment.

27. Considering the aggravating factors.

(i) Age of the victims ranging from 7 years to 11 years.

(ii) You have repeated your sexual activities on 5 children.

Considering all the above factors I increase your sentence by 2 years. Now your sentence is 14 years imprisonment.

28. Your mitigating circumstances considered as follows:

(i) You are 29 years unmarried.

(ii) You are remorseful.

(iii) You have pleaded guilty.

(iv) Your period in remand.

(v) You were subjected to abuse when you were a small child.

Considering all mitigating circumstances I reduce 4 years from your sentence. Now your sentence is 10 years imprisonment.

29. The Accused through his Counsel submitted that, when the Accused was remanded he was subjected to sexual abuse by the prisoners and some prison officials. Therefore he seeks leniency in sentencing.

30. The Accused suggests 3 options for Court to consider. The 1st option is to prison him for the day and release him in the night. The 2nd option is to jail him with young offenders. Considering the nature of the offence these two options are unsuitable.

31. The 3rd option suggested was to keep the Accused in a separate cell.

32. In Mutch v State (unreported) HAM 00069 of 2005 when Justice Gates (as he was then) had this to say about when should the Court intervene in how the prisons are run. At page 6 para 29-31;

"How far should the judiciary intervene?

This central issue was discussed in William K.Davis, where Maynard J said (at p. 5):

"When considering challenges to prison regulations, we are ever mindful of both the natural conditions which accompany incarceration for breaking society's laws and the contrasting roles of prison administrators and judges. Incarceration necessarily involves substantial limitations upon a prisoner's personal liberty. "Lawful imprisonment necessarily makes unavailable many rights and privileges of the ordinary citizen, a 'retraction justified by the considerations underlying our penal system.'" Wolff v. McDonnell. [1974] USSC 157; 418 U.S. 539, 555[1974] USSC 157; , 94 S.Ct. 2963, 2974[1974] USSC 157; , 41 L.Ed2d 935, 950 (1974) (citation omitted). The primary responsibility for ensuring the orderly and effective maintenance of our penal system rests with prison administrators. These administrators are the ones responsible for developing and implementing the policies and procedures which are designed to guarantee that the various goals of incarceration are realized. This Court has recognized that prison administrators have broad discretion in the management of correctional facilities."

He continued (p.6):

"On the other hand, "a prisoner is not wholly stripped of constitutional protections when he is imprisoned for crime." Wolff, 418 U.S. at 555, 94 S.Ct. at 2974, 41 L.Ed.2d at 950. For example, we have stated that "[c]ertain conditions of jail confinement may be so lacking in the area of adequate food, clothing, shelter, sanitation, medical care and personal safety as to constitute cruel and unusual punishment under the Eighth Amendment to the United States Constitution.''"

I would add "and under Fiji's Constitution also."

If basic constitutional rights are infringed, then the courts will disturb the actions of prison administrators, Violations are properly brought to the court's attention. The court's cynosure and aim must be to achieve in the prison context "a mutual accommodation between institutional needs and objectives and the provisions of the Constitution": Wolff. 418 U.S. at 556, 94 S.Ct. at 2975, 41 L.Ed.2d at 951. Maynard J concluded:

"In seeking the proper balance, we are careful not to usurp the authority of prison administrators, yet we must be vigilant in not relinquishing this Court's role as guardian of fundamental constitutional commitments."

32. The State Counsel in her submissions submits that the Accused cannot be shown any special preferences in sentencing, all should be treated equally.

33. Considering the submissions by both Counsels, I agree that the Accused person is different from the others on the grounds of sexuality. He may be vulnerable among the male prisoners but this Court should not interfere with the administration of the Prison allocation until there is an important and urgent need. Anyhow considering the application of the Accused this court requests the Commissioner of Prisons to consider to allocate on appropriate accommodation for this Accused to ensure that he is not sexually abused by any person in the prison.

34. Summary.

1st Count – 4 years imprisonment.

2nd Count – 4 years imprisonment.

3rd Count – 4 years imprisonment.

4th Count – 4 years imprisonment.

5th Count – 10 years imprisonment.

Considering all circumstances I am ordering to run all these sentence concurrently. Now your sentence is 10 years imprisonment.

35. Considering section 18 (1) of the Sentence and Penalties Decree I impose 8 years as non parole period.

36. You have 30 days to appeal.

S Thurairaja
Judge
At Suva

Solicitors
Office of the Director of Public Prosecution for State
Office of the Legal Aid Commission for the Accused