State v Ram - Sentence [2011] FJHC 641; HAC033.2010L (12 October 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 033 OF 2010L

BETWEEN:

STATE

AND :

FELIX RAM

Mr F. Lacanivalu for the State
Ms. V. Tamanisau [LAC] for the Accused

Date of Hearing : 11th October, 2011.
Date of Sentence : 12th October, 2011.

SENTENCE
[Child Rape]

[1] On the 11th October 2011 the accused entered a plea of guilty to one charge of rape contrary to Section 207(1) & (2) (b) of the Crimes Decree 2009, the particulars being that on the 14th March 2010 at Uciwai settlement, Korolevu he raped a child with his finger. He agreed to facts put to him, whereupon he was found guilty and convicted.

[2] The facts admitted by the accused were that in March 2010 he was staying with the victims' family, he being related to the victims' father. On the 14th March 2010, the mother had left home to visit the father in hospital. She left the victim, who at the time was 9 years old and her elder brother in the care of the accused.

[3] After dinner the two children went to sleep on a mattress. The boy asked the accused to sleep on the mattress with them as his mother has not yet returned. The accused blew out the candle and joined them on the mattress. The boy told the victim to lie in the middle between him and the accused. While lying down the accused pulled down the girls' panties and used his fingers to indecently invade her. The victim felt pain and tried to push his hand away, however the accused persisted. The next morning the young girl told her mother what had happened. The accused was chased from the house and the Police informed.

[4] The maximum penalty for rape is life imprisonment and the Courts have recently been handing down very heavy sentences on offenders against children. Sexual offending against children in this country has become far too prevalent and it is the hope that harsh sentences will send out a clear message to would be perpetrators that our children are to be protected from such unrestrained immorality.

[5] In Tamanitoakula HAC 28 of 2010 (Lbs), Thurairaja J passed a sentence of 16 years against an accused convicted of rape of a thirteen year old, as a deterrent punishment.

[6] A very similar case to this was in Labasa where a 50 years old raped a nine year old and attracted a sentence of twelve years by Goundar J in Joji Mara HAC 38 of 2010(Lbs).

[7] The Court of Appeal has set the starting point for rape of a child to be ten years imprisonment in Drotini AAU0001.2005S.

[8] In mitigation, Counsel for the accused tells me that the accused is 57 years old, and while previously a saw miller, he now works as a security guard. He regrets what has happened and when he came to his senses he got up and left the room. He was previously a member of the Catholic Church but now belongs to the Harvest Evangelical Church whose Senior Pastor gave a sworn testimonial in his favour.

[9] He produces a letter from the Parish Priest of the Lautoka Catholic Church attesting to his good character.

[10] He is asthmatic and intensely remorseful. He would have sought forgiveness from the victim but was unable to because of the strict bail conditions imposed on him.

[11] Two of the biggest mitigatory features in his favour are his "eve of trial" plea of guilty, and in doing so relieving the victim of having to relive her ordeal.

[12] It is an aggravating feature of the case that the accused was in a position of trust, that trust given him by the mother to care for the children in her absence. That trust he abused.

[13] I take as a starting point a term of fourteen years imprisonment and for the aggravation of breach of trust I increase that to a term of sixteen years. For the demonstrable remorse and religious mitigation I deduct 2 years. This also includes credit for his clear record. The plea of guilty was entered on the day of trial and will not receive the full credit it could; but I am nevertheless aware of the saving of the young girl giving evidence. He will receive credit for that of three years, meaning that the accused will serve a total term of imprisonment of 11 years.

[14] He will serve a minimum term of nine years before being eligible for parole.

Paul K. Madigan
JUDGE
At Lautoka
12th October 2011.