State v Thakur [2012] FJHC 1116; HAC128.2011 (22 May 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 128 OF 2011

BETWEEN:

STATE

AND:

SUBRAMANI THAKUR

Counsel : S Puamau with Ms K Semisi for the State
Accused in Person

Date of Ruling : 22nd May 2012

SENTENCING

1. The Accused charged of two Counts of Rape punishable under Section 207(1) of the Crimes Decree 44 of 2009.
   
2. After the trial all three Assessors unanimously found the Accused guilty and the Court also found him guilty as charged and convicted him accordingly.
   
3. The Accused was 70 years old and the victim was 10 years old girl with lower IQ and learning difficulties. The Accused and the victim families are neighbours. The Accused took advantage of the girl and raped her by penetrating his finger into her vagina. This had happened on two consecutive days.
   
4. When the victim complaint of pain at her lower abdomen to her class teacher then this incident came to light. She was examined by a Medical Practitioner and found that she was subject to finger penetration and her hymen was missing with injuries.
   
5. Section 207 (1) prescribes maximum punishment as imprisonment for life.
   
6. In State –v- Mario Tauvoli (2011) FJHC 216 the Court commenced the sentence at 12 years imprisonment.
   
7. In a similar case State –v- Peceli Roba (2012) FJHC 860 Justice Temo commenced the sentence at 10 years imprisonment.
   
8. Considering the circumstances of the case I commence your sentence at 11 years imprisonment.
   
9. Considering the aggravating factors:
   
   1. Absolute betrayal of elders and children relationship;
   2. You abused a child who has lower IQ and learning difficulties;
   100. Physical pain of the victim;
   4. Psychological trauma caused to that innocent victim.
      

Considering all, I increase your sentence by 4 years. Now your sentence is 15 years imprisonment.

10. Considering the mitigating circumstances :
    
    1. You are a first offender;
       
    2. You are 70 years old;
       
    100. You claim you are not in good health;
         
    4. You submit you have 3 sons and 5 daughters, 32 grandchildren and 30 great grand children;
       

(This factor can be considered as an aggravating factor also when it comes to the safety of small girls at your family)

5. You claim you are an asthmatic patient;
   
6. Your daughter seek forgiveness;
   
7. Period in remand custody.
   

Considering all your mitigating circumstances I reduce 5 years from your sentence. Now your sentence is 10 years imprisonment.

11. While considering your age, the Court is also mindful of the safety of the children who are of tender years. Either this is becoming prevalent in the present society or the children are becoming aware or coming forward and complaining of these incidents. Whatever the way this Court is duty bound to protect the children. Sentence imposed on you should be a lesson to all offenders in the future. This Court will not tolerate this type of abuse against the children.
    
12. Considering Section 18(1) of the Sentencing & Penalties Decree
    

"Subject to sub-section (2), when a court sentences an offender to be imprisoned for life or for a term of 2 years or more the court must fix a period during which the offender is not eligible to be released on parole".

I impose 8 years as non parole period.

13. You are sentenced to 10 years imprisonment. You will not be eligible for parole for a period of 8 years.
    
14. 30 days to appeal to the Court of Appeal.
    

S. Thurairaja
Judge

At Lautoka
22nd May 2012

Counsels : The Office of the Director of Public Prosecution for State Accused in Person