State v Prasad [2012] FJHC 1246; HAC161.2010S (31 July 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 161 OF 2010S

STATE

vs

1. JACK PRASAD
2. KRISHNEEL SHARMA
3. SADA NAND SINGH
4. PREMILA DEVI
5. ANA REPEKA PRASAD

Counsels: Ms. I. Whippy and Ms. L. Latu for State
Mr. R. Chaudhry for Accuseds No. 1, 2 and 5
Mr. W. Pillay for Accuseds No. 3 and 4

Hearings: 5th to 8th June and 12 June, 2012

Summing Up : 13th June, 2012

Judgment: 13th June, 2012

Sentence: 31st July, 2012

SENTENCING

1. In a judgment delivered on 13th June, 2012, the court found you guilty and convicted you on the following counts:
   

Count One
Statement of Offence

WRONGFUL CONFINEMENT: Contrary to section 286 of the Crime Decree No. 44 of 2009.

Particulars of Offence

Jack Prasad, Krishneel Sharma, Sada Nand Singh, Premila Devi and Ana Repeka Prasad on the 16th day of August 2010 at Suva in the Central Division, wrongfully confined Rukshana Nisha.

Count Three
Statement of Offence

RAPE: Contrary to section 207(1) and (2)(b) of the Crimes Decree, No. 44 of 2009.

Particulars of Offence

Krishneel Sharma on the 16th day of August 2010 at Colo-i-Suvain the Central Division penetrated the vagina of Rukshana Nisha with his fingers without her consent.

Count Four
Statement of Offence

INDECENT ASSAULT: Contrary to section 212(1) of the Crimes Decree, No. 44 of 2009.

Particulars of Offence

Jack Prasad on the 16th day of August 2012 at Nausori in the Central Division, unlawfully and indecently rubbed his penis against the mouth of Rukshana Nisha.

2. All of you were found guilty of "wrongfully confining" the complainant on 16th August 2010, and later accused no. 2 insulted the complainant by raping her with his fingers, and then accused no. 1 indecently assaulted her by exposing himself to her, without her consent. The fact of the case was disturbing. It was a case of 5 adult people bullying a married woman. You all made up a story that the complainant was having an affair with accused no. 3. As the complainant said, this was nothing but an utter lie, and the assessors and the court, accepted the complainant's evidence, after hearing her evidence. The whole of you then participated in a deceptive scheme to entrap the complainant, unlawfully confined her, and subjected her to further abuses. Accused no.1 and his wife, accused no. 5, pretended to take her home, after work on 16th August, 2010. But both of you took her to Nasese sea wall, where she was met by the others.
   
3. Accused No. 2, 3 and 4 arrived in another car, and you jointly abused her. She was forcefully taken out of a car and assaulted. She was later forcefully taken to a Tamavua Bus Depot, where she was forcefully and wrongfully confined by accused no. 2, 5 and another person. She was threatened that she will be killed if she escaped. Accused no. 2 then drove to another dark spot near Sawani, and forcefully raped her, by inserting his fingers in her vagina. Later on, accused no. 1 you unlawfully expose yourself to her, without her consent. Accused no.3, you permitted the use of your two cars, in the bullying of the complainant. All of you had no right whatsoever to abuse this complainant. For all your misdeeds, you will have to pay for your crimes.
   
4. "Wrongful confinement", carries a maximum penalty of 5 years imprisonment, or a fine of 10 penalty units ($1,000), or both. No relevant case was shown to the court to indicate the tariff for this offence. However, given how previous tariffs have been determined, a reasonable tariff for wrongful confinement would be a sentence between 6 to 24 months, serious cases will attract the higher side of the tariff, with less serious cases, the lower end of the tariff.
   
5. Rape is a serious offence. The maximum sentence is life imprisonment. For adults, the tariff is a sentence between 7 to 15 years imprisonment: see Mohammed Kasim v The State, Criminal Appeal No. 21 of 1993, Fiji Court of Appeal; Bera Yalimaiwai v The State, Criminal Appeal No. AAU 0033 of 2003, Fiji Court of Appeal; Navuniani Koroi v The State, Criminal Appeal No. AAU 0037 of 2002, Fiji Court of Appeal and Viliame Tamani v The State, Criminal Appeal No. AAU 0025 of 2003, Fiji Court of Appeal.
   
6. "Indecent assault" carries a maximum sentence of 5 years imprisonment. The tariff for "indecent assault" is a sentence between 1 to 4 years imprisonment. The more serious the indecent assault is, the higher the sentence will be: see Ratu Penioni Rakota v The State, Criminal Appeal No. HAA 0068 of 2002S, High Court, Suva; Sikeli Nayate v The State, Criminal Appeal No. HAA 46 of 2008, High Court, Suva. The actual sentence on the above offences, will depend on the aggravating and mitigating factors.
   
7. I note that all of you are 1st offenders. For Accused No. 1, 2 and 5, I have noted your well prepared plea in mitigations. I have also noted your counsel's well prepared written and verbal submissions. As for accused no. 3 and 4, I have noted your counsel's well prepared written and verbal plea in mitigation, including your well prepared submissions.
   
8. The aggravating factors in this case were as follows:
   
   • (i) Somehow, the whole lot of you, have something against the complainant. You all began by accusing her of having an affair with accused no. 3, who was old enough to be her father. This allegation was mischievous and fraudulent. Accused no. 3, and his wife, accused no. 4, "threw fuel into the fire", by propagating the above untruth. The two of you then enticed the other accuseds into your fraudulent scheme. By your joint deeds, you then as a group, directly and indirectly unlawfully confined the complainant in two cars, in the evening of 16th August, 2010. While confined, you all directly and indirectly threatened her.
     
   • (ii) As for Accused No. 2, while the complainant was being confined by you, you proceeded to rape her by inserting your finger into her vagina, without her consent. You knew she was not consenting. You showed total disregard to her right as a human being and her dignity. In addition, you showed total disregard to her safety. You must pay for your utter disregard for a person's right.
     
   • (iii) As for you Accused No. 1, you are a father of 4 young children. You are married to Accused No. 5. Of all people, you and your wife, being parents to 4 young children, had the ability to stop the above offendings. Instead, you both encouraged and participated in the same. Your actions caused serious harm to the complainant, both physically and mentally. You must atone for your actions.
     
   • (iv) Accused No. 3 and 4 – it appeared that you two were the mastermind behind these offendings against the complainant.
     
9. The mitigating factors were as follows:
   
   • (i) You are all first offenders.
     
   • (ii) During the offendings, the complainant did not suffer any life threatening injuries.
     
   • (iii) As for you Accused No. 1 and 5, you are parents of four young children.
     
   • (iv) As for Accused No. 1 and 2, you have both spent approximately 6 weeks 5 days in custody.
     
10. In sentencing each of you, I will start with Accused No. 2, who committed the most serious offence of rape. I start with a sentence of 7 years imprisonment. For the aggravating factors, I add 3 years, making a total of 10 years imprisonment. For the mitigating factors, I deduct 2 years, leaving a balance of 8 years imprisonment. For the rape charges (count no. 3), I sentence you Accused No. 2 to 8 years imprisonment, with a non-parole period of 6 years.
    
11. Next is accused no. 1. I start with a sentence of 12 months imprisonment on count no. 4 (indecent assault). For the aggravating factors, I add 6 months, making a total of 18 months imprisonment. For the mitigating factors, I deduct 6 months, leaving a balance of 12 months. I sentence you, accused no. 1, to 12 months imprisonment – 6 months of which to be served in custody, with a non-parole period of 3 months; the balance of 6 months imprisonment, to be suspended for 3 years, from the date of his release from prison. Meaning of suspended sentence explained to accused no. 1.
    
12. On count no. 1, I sentence all of you as follows. I start with a sentence of 6 months imprisonment. For the aggravating facts, I add 3 months, leaving a total of 9 months imprisonment. For the mitigating factors, I deduct 3 months, leaving a balance of 6 months. I sentence each of you to 6 months imprisonment, on count no. 1. Because accused no. 1 and 2 will serve custodial sentence, the above 6 months imprisonment is made concurrent to their sentence in counts no. 3 and 4.
    
13. For Accused no. 3, 4 and 5, because Accused No. 3 and 4 are elderly people, and Accused No. 5 will be looking after four young children, your 6 months prison sentence are suspended for 3 years from today. Meaning of suspended sentence explained to each accused. Because Accused No 3 and 4 appear to be the mastermind of the offending, each are fined $1,000 each, payable within 4 weeks, in default, each to be imprisoned for 3 months each. The fines to be paid to the complainant as compensation. I order so accordingly.
    

Salesi Temo
JUDGE

Solicitor for the State: Office of the Director of Public Prosecutions, Suva.
Solicitor for Accused No. 1, 2 & 5: R. Chaudhry, Barristers & Solicitors, Suva.
Solicitor for Accused No. 3 & 4: W. Pillay, Barristers & Solicitors, Suva.