State v RK - Sentence [2012] FJHC 1157; HAC74.2011 (12 June 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO : HAC 74 of 2011

BETWEEN:

STATE
Prosecution

AND:

RK
The Accused

Dates of Trial : 04- 05 June 2012
Date of Summing-Up : 06 June 2012
Date of Judgment : 06 June 2012
Date of Sentence : 12 June 2012

Mr F Lacanivalu for the State
Mr H. A. Shah with Mr M Degei for the Accused

SENTENCE
(Names of the victim and the accused suppressed)

1. The accused stood charged for having committed the offence of 'Rape' punishable under Section 207 (2) (a) of the Crimes Decree No. 44 of 2009 (Crimes Decree). Particulars of the offence, as disclosed by the information dated 07 July 2011 by the Director of Public Prosecutions, were that the accused had carnal knowledge of a girl named RS, 7 years of age, on 20 February 2011.
   
2. It was undisputed at the trial that the victim's family moved their home from Lautoka to Sigatoka on 19 February 2011. The accused, a neighbour in Lautoka, who later became a friend of the father of the victim, helped the family to shift their belongings on 19 February 2011 and travelled with them to Sigatoka.
   
3. Evidence of the victim was that, on 20 February 2011, her parents left the victim and her younger sister with the accused at their new home in order to purchase some grocery items. Little later, as RS came out of a shower with a towel wrapped around her, the accused removed the towel and pulled her inside a room. Thereafter, the accused, having licked her body allover, penetrated her vagina with his penis, which, according to the victim, was 'very very painful'.
   
4. There was manifestly a delay in coming the incident to light. The victim revealed the story only on 14 March 2011 to an inquisitive neighbour after seeing the victim's 'weird' behaviour at a dance. Consequently, police investigation and the medical examination of the victim, too, became late.
   
5. Dr (Ms) Sherene Prasad, in her testimony, revealed that there was a healed abrasion on the medial aspect of her right thigh and that she observed loss of hymen of the victim as she examined the victim on 15 March 2011. There was no, however, evidence of recent penetration.
   
6. The accused in his sworn evidence denied having had access to the victim to have carnal knowledge even though he had stayed with the victim's family for two days from 19 February 2011 until he left the place on the following Monday. The accused specifically stated that the two children were kept under the care of the landlady, when the parents went away on shopping.
   
7. The assessors have rejected the version of the accused and accepted beyond reasonable doubt the prosecution evidence in relation to each element of the offence. They, accordingly, returned unanimous opinions of guilty. I concurred with their opinions and convicted the accused of the offence of 'Rape' under Section 207 (2) (a) of the Crimes Decree.
   
8. It is in these circumstances that the accused awaits the sentence of this court.
   
9. Rape is a very serious crime. The nature of the crime is such that a victim is subjected to physical harm and psychological trauma at the behest of an offender for his ephemeral lust. In recognition of its severity, the Crimes Decree in terms of Section 207 (1), has prescribed the sentence of life imprisonment for the offence of 'Rape'. The offence is triable only before High Court, for among other reasons, to ensure an enhanced sentence.
   
10. Considering the vulnerability; and, the potentiality of the children for their psychological backwardness resulting from sexual attacks of rape, case precedents have established a term of 10-15 year imprisonment for a child-rape convict. This range of sentence is obviously higher than on a convict in adult-rape; and, it also underlines the sentencing principle of deterrence.
    
11. In State v Mario Tauvoli; [2011] FJHC 216; a starting point of 12 years was taken to punish a rape convict where the victim was a fourteen year old step-daughter and a term of 13 years was imposed with a non-parole period of 10 years.
    
12. In State v Anand Abhay Raj [2010] FJHC 198;, a similar range of sentence was applied to deal with an offender who had raped a ten year old step-daughter, having picked-up 12 years as the starting point to reach a mandatory 12 year period of sentence.
    
13. This court in the cases of State v Vila [2012] FJHC 907and State v Anthony [2012] FJHC 1013 applied the range of sentence of 10-15 years and chose the starting points of 14 years to deal with offenders, who were above 50 years of age and imposed a sentence of 14 years in each case with a non-paroled period of 12 years. That was to denote the breach of trust by elderly adults, which was at its highest and also to acknowledge the depravity of the crime.
    
14. The victim in this case, although 7 1/2 years of age having born on 01 September 2003, was similarly circumstanced as the victims in the cases referred to above. The accused, on the other hand, was only 20 years of age, having born on 22 December 1990, according to the submission of Mr Shah.
    
15. Mr Lacanivalu submitted that the aggravating factor was that the accused breached the trust reposed on him by the father of the victim. While Mr Lavanivalu was entitled to that contention on behalf of the state, I am wary about taking that into account as a factor aggravating the offending because the prosecution has not established such a relationship of trust with the accused apart from the fact of help that the accused volunteered on 19 February 2011.
    
16. Evidence, on the contrary, showed that the circumstances unwisely created by the father to leave the victim with the twenty year-old accused, had led to the accused's delinquent conduct. The parents must be faulted and deserve to be admonished for exposing the child to a grave crime such as this. It is the duty of the parents and the guardians to prevent the children from exposing to this kind of vulnerable situations.
    
17. The conduct of the accused, though delinquent, did not show pre-planning or physical violence on the victim to carry-out the act of sexual intercourse.
    
18. The prosecution did not present any other evidence in the form of aggravation. Nor could I gather any, other than the circumstances that are embedded in the offence itself. The accused, however, knew or ought to have known the culpability of his conduct as there was nothing on record to infer the contrary.
    
19. In the circumstances, I pick-up a twelve year term of imprisonment as my starting point.
    
20. Prosecution did not furnish material to consider the sentence from the aspects of victim impact. The so-called Victim Impact Report filed with the submissions by the state under the hand of the father of the victim is only a self-serving document. It contained no acceptable material for this court to take into account.
    
21. In the result, I find no evidence to consider an enhancement of the sentence beyond the term of twelve years.
    
22. The accused is a young offender with no previous criminal record or any blemishes. He hails from an indigent background and has had education only up to Form III. Mr Shah submitted that considering the personal circumstances, court needed to consider the possibility of rehabilitation with a short term of imprisonment.
    
23. I have carefully considered the submissions with a view to balancing the competing interests of the victim, the accused and the society at large, which underpin the provisions of the Sentencing and Penalties Decree No 42 of 2009. I bear, however, in mind that the deterrence is of paramount importance in a case of this nature.
    
24. I reduce two years for the factors in paragraph 16, 17 and 22 above, which, in my view, mitigate the offending. In the result, I arrive at a term of ten year imprisonment. In spite of Mr Shah's strenuous submissions, any further reduction could have been possible if there was genuine repentance and remorse. There was none in this case.
    
25. I, accordingly, sentence the accused to a term of ten year imprisonment. The accused shall be eligible to parole only at the completion of eight years in imprisonment. The sentence shall be deemed to have commenced from 06 June 2012, the date of conviction.
    

Priyantha Nāwāna
Judge
High Court
Lautoka
12 June 2012