State v Ali - Sentence [2012] FJHC 1121; HAC235.2011 (21 May 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 235/ 2011

BETWEEN:

STATE

AND:

MOHAMMED IMTIAZ ALI

COUNSELS: Ms. P. Madanavosa for the State

Accused in person

Name of the victim is suppressed. She will be referred to as RN

Date of Trial : 08-10/05/ 2012
Date of Summing Up : 14/05/ 2012
Date of Judgment : 15/05/2012
Date of Sentencing Hearing : 18/05/2012
Date of Sentencing : 21/05/2012

SENTENCE

01. The Director of Public Prosecution had preferred the following charge against the accused above named.

First Count

Statement of Offence

RAPE: Contrary to section 149 and 150 of the Penal Code Cap.17.

Particulars of Offence

MOHAMMED IMTIAZ ALI between the 29th day of December 2009 to the 31st day of January 2010 at Suva in the Central Division, had unlawful carnal knowledge of RN, without her consent.

Alternative Count

Statement of offence

Defilement of a girl between 13 and 16 years of age: contrary to section 156(1) of the Penal Code.Cap.17.

Particulars of Offence

MOHAMMED IMTIAZ ALI between the 29th day of December 2009 to the 31st day of January 2010 at Suva, in the Central Division, had unlawful carnal knowledge of RN a girl being above the age of 13 years and under the age of 16.

02. After trial on the charge, the accused was found not guilty on the first charge. But he was convicted for alternative charge of Defilement of a girl between 13 years and 16 years of age.

03. In this case this victim (RN) gave evidence first. According to her she had been raped thrice by the accused. But she did not inform this to her mother or anybody else. She only informed the incident to her neighbor once she became pregnant. She did not go to the police first. She had gone to CWM Hospital first and then gone to the police. The victim (RN) was 15 years and 09 months old at the time of first incident. She had number of opportunities to tell this to her mother or any other person. She said that she was threatened with death and her family.

04. In this case accused did not challenge his caution interview statement. During the trial, he took up the position that he had sexual intercourse with consent of the victim (RN). He had taken up the same position in his caution interview statement as well. To prove his case he called witnesses.

05. As per section 156(1) of Penal Code the maximum sentence for the offence of Defilement of a girl between 13 and 16 years of age is 10 years imprisonment. This is similar to the offence under Crimes Decree 2009.

06. The usual range of sentences is from a suspended sentence for an accused in a "virtuous relationship" whilst the higher end of sentence is for offenders who are older and in position of trust. (Rokowaqa CA 37/2004, State v Kabaura [2010] FJHC 280)In the case of Elia Donumainasava v State Crim.App.HAA 32 of 2001 Justice Shameem J said "The offence is clearly designed to protect young girls who have entered puberty and experiencing social and hormonal changes, from sexual exploitation."

07. The accused is 32 years of age and unmarried. When arrested he co-operated with the police and made confession in his Record of Interview. He is a sibling of a broken family whereby he had lost the love of his parents at the age of 10. He claims the victim was a willing partner and they had sexual intercourse several times. Now he wishes to marry the victim (RN) and to look after the child. He apologizes to the court.

08. I have carefully considered these submissions in light of the provisions of the Sentencing and Penalties Decree No: 42 of 2009 especially those of the sections set out below in order to determine the appropriate sentence.

09. Section 15(3) of the Sentencing Decree provides that:

"as a general principle of sentencing, a court may not impose a more serious sentence unless it is satisfied that a lesser or alternative sentence will not meet the objectives of sentencing stated in Section 4, and sentence of imprisonment should be regarded as the sanction of last resort taking into account all matters stated in the General Sentencing Provisions of the decree".

10. The objectives of sentencing, as found in section 4(1) of the Decree, are as follows:

1. To punish offenders to an extent and a manner, which is just in all the circumstances;
2. To protect the community from offenders;
3. To deter offenders or other persons from committing offences of the same or similar nature;
4. To establish conditions so that rehabilitation of offenders may be promoted or facilitated;
5. To signify that the court and the community denounce the commission of such offences; or
6. Any combination of these purposes.
   

11. Section 4(2) of the Decree further provides that in sentencing offenders, a Court must have regarded to:

(a) The maximum penalty prescribed for the offence;

(b) Current sentencing practice and the terms of any applicable and guideline Judgments;

(c) The nature and gravity of the particular offence;

(d) The defender's culpability and degree of responsibly for the offence;

(e) The impact of the offence on any victim of the offence and the injury, loss or damage resulting from the offence;

(f) Whether the offender pleaded guilty to the offence, and if so, the stage in the proceedings at which the offender did so or indicated an intention to do so;

12. Now I consider the aggravating factors:

1. The accused is closely related to the victim(RN)
2. The accused knew the accused was under the age of 16 years.
3. Accused was 28 years and victim (RN) was 15 years and 09 months old at the time of first incident.
4. Victim's education was disrupted due to the act of the accused.
5. Victim is emotionally and psychologically affected.
6. The victim (RN) given birth to a child.
   
13. Now I consider the mitigating circumstances:
    

(a) Accused is 32 years old.

(b) He co-operated with the Police and made confession in his record of Caution interview statement.

(c) He has a family to look after.

(d) He apologizes to the court.

(e) He wants to marry the victim (RN).

(f) He is remorseful.

14. Considering all aggravating and mitigating circumstances I take 03 years imprisonment as the starting point. I add 01 year for aggravating factors to reach the period of imprisonment at 04 years. I deduct 02 years for the mitigating factors.

15. In summary you are sentenced to 02 years imprisonment for the charge of Defilement of a girl between 13 years and 16 years of age.

16. Considering the nature of the offence and circumstances of the case, I declined to fix a non-parole period as per section 18(2) of the Sentencing and Penalties Decree, 2009.

17. 30 days to appeal.

P.Kumararatnam

JUDGE

At Suva
21st May, 2012