State v Jabbar [2011] FJHC 778; HAC17.2011 (29 November 2011)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

Criminal Case No: HAC 17 of 2011

STATE

v.

MOHAMMED JABBAR

Date of hearing: 24 - 25 November 2011
Date of Sentence: 29 November 2011

Counsel: Mr. K. Waqavonovono for State
Mr. A. Kohli for Accused

SENTENCE

[1] Mohammed Jabbar, you appear before this Court for sentence, after being convicted of rape. The incident occurred in Batinikama, Labasa, on a weekend, last year. You lured the victim out of his home and took him into the cane fields, where you penetrated his mouth with your penis. While you are being sentenced for one episode of rape, the circumstances surrounding the offence are serious.

[2] At the time of the offence, the victim was 9 years old, while you were 53 years old. You are related to the victim through his mother. The victim considered you as his grandfather. You lived in the same settlement and you have been a regular visitor to his home. You had a moral responsibility to protect the child. Instead, you sexually violated him and breached his trust.

[3] The age difference and your relationship with the victim, made him vulnerable to your offending. In assessing your culpability, I treat the vulnerability of the victim and the breach of trust as aggravating factors.

[4] Although you did not use any physical violence during the act, according to the victim you had a knife with you. That is the reason the victim gave for not resisting you. Clearly, the presence of a knife was a form of intimidation designed to assert control or to prevent the victim from reporting the offending.

[5] I accept that no physical or psychological trauma is apparent on the victim. However, harm is inherent in the sexual offending against a child and it is not possible to assess that harm at this stage.

[6] The only compelling mitigating factor is your previous good character. You are married. Your wife is financially depended on you. You earn $70.00 per week as a driver. Your four children are married.

[7] All forms of offending proscribed in section 207 of the Crimes Decree carry sentence of discretionary life imprisonment. Under the new law, rape involves a range of sexual penetration of a person. Further, unlike the old law, rape is now defined in a gender neutral manner so to include boys and men as victims.

[8] In sentencing offenders under section 207 of the Crimes Decree, I do not think there should be a difference in sentencing approach based on the forms of violation. Whether it is penile penetration of mouth, vulva, vagina or anus, or digital penetration of vagina or anus, the approach to sentencing should be the same.

[9] An approach to treat these forms of violation as broadly similar in the sentencing context is consistent with the purpose of the rape law reforms that have taken place under the Crimes Decree. Clearly, one of the objects of the rape law reform was to recognize that any act of sexual violation to the body of another must suffer the same punishment. After all, any form of sexual violation is an invasion of privacy and loss of personal dignity for the victim.

[10] Sexual offences against children are becoming too prevalent in our society. Most of these offences are committed by persons who are in position of trust. The courts have a duty to protect the most vulnerable members of our society and to denounce any form of sexual violation of children.

[11] In cases of rape of a child, the tariff is between 10 to 14 years imprisonment (Mutch v State, Cr. App. AAU0060/99, Mani v State, Cr. App. No. HAA0053/02L, State v Saitava, Cr. Case No. HAC10/07, State v Marawa, Cr. Case No. 016/03, Drotini v State, Cr. App. AAU001/05 and State v Tony, Cr. App. No. HAA003/08).

[12] I pick 10 years as my starting point. I increase the sentence to 14 years to reflect the aggravating factors and reduce 2 years to reflect the mitigating factors.

[13] I sentence you to 12 years imprisonment and I order that you serve 10 years before eligible for parole.

[14] I recommend counseling for the child victim, to be arranged by the Department of Social Welfare.

Daniel Goundar
JUDGE

At Labasa
29 November 2011

Solicitors:
Office of the Director of Public Prosecutions, Labasa for the State
Messrs. Kohli & Co., Labasa, for the Accused