State v Sharma [2012] FJHC 1261; HAC177.2011 (7 August 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 177 OF 2011

BETWEEN:

THE STATE

AND:

EDWARD SHARMA

Counsels: P. Low for the State
Iqbal Khan for the Accused

Date of Trial: 26th – 31st July 2012

Date of Sentencing

Submission: 03rd August 2012

Date of Sentence: 7th August 2012

SENTENCE

1. In the best interest of the child victim, the name and identity of the child is suppressed.
   
2. The Accused above named charged for the offence of Rape punishable under Section 207 (1) and 207 (2) (b) of the Crimes Decree No 44 of 2009.
   
3. According to the evidence before the court the virtual Complainant CKK (10 years old) and the Accused (39 years old) are related as uncle and niece. On the 28th August 2011 she had visited to the house of the Accused for a farewell dinner of her aunty who had come from New Zealand. When she was lying on the mattress and watching cartoon together with the daughter (3 ½ year old) of the Accused. The Accused lay beside of them, unzipped, unbuttoned inserted his hand into the pants and penetrated her vagina with his finger.
   
4. After the trial the Accused was found guilty and convicted as charged by the court.
   
5. Edward Sharma you stand convicted under Section 207 (1) of the Crimes Decree.
   

LAW:

6. Section 207 (2) (b) of the Crimes Decree states as follows:
   

"A person rapes another person if –

The person penetrates the vulva, vagina or anus of the other person to any extent with a thing or a part of the person's body that is not a penis without the other person's consent."

7. In United Kingdom Section 5(1) (2) of the Sexual Offences Act 2003 states:
   

"(1) A person commits an offence if:-

(a) He intentionally penetrates the vagina, anus or mouth of another person with his penis, and

(b) The other person is under 13.

(2) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life."

8. The maximum sentence prescribed by Section 207 (1) is imprisonment for life.
   

TARIFF:

9. Tariff for the offence of Rape of child is between 10 to 16 years imprisonment. In William Christopher Millbery & 2 Others vs. R (2002) EWCA Crim. 2891 (09 December 2002) the Court held:
   

"22. The Panel confirms the 15 years and upwards starting point for a campaign of rape. This is recommended where the offender has repeatedly raped the same victim over a course of time as well as for those involving multiple victims".

10. In Mohammed Kasim v The State (unreported) Fiji Court of Appeal Cr. Case No 14 of 1993; 27 May 1994 the Court of Appeal observed (at p.6):
    

"We consider that in any rape case without aggravating or mitigating features the starting point for sentencing an adult should be a term of imprisonment of seven years. It must be recognized by the Courts that the crime of rape has become altogether too frequent and that the sentences imposed by the Courts for that crime must more nearly reflect the understandable public outrage. We must stress, however, that the particular circumstances of a case will mean that there are cases where the proper sentence may be substantially higher or substantially lower than that starting point."

11. In State v Lasaro Turagabeci [1996] FJHC 173; HAC 0008.1996S (27 November 1996) Pain J said:
    

"The Courts made it clear that rapists will be dealt with severely.

Rape is generally regarded as one of the gravest sexual offences. It violates and degrades a fellow human being. The physical and emotional consequences to the victim are likely to be severe. The Courts must protect women from such degradation and trauma. The increasing prevalence of such offending in the community calls for deterrent sentences."

12. In a case with some similarities to this case Shameem J in The State v Navauniani Koroi (unreported) Cr. App. Case No HAA0050.2002S arrived at a sentence of 12 years and explained:
    

"Taking the 7 years as the starting point, I increase the term by two years for the young age of the complainant, and a further three years for the fact that she is your daughter. I add a further year for the resulting pregnancy. I reduce the term by one year for the guilty plea and other mitigation....."

13. In The State v Peniasi Senikarawa (unreported) High Court Suva Cr. Case HAC 0017.2008S; 20 May 2003 the accused was sentenced to 11 years imprisonment. Shameem J started on the tariff at 7 years. The mitigation was that the accused had a good character, was hardworking and struggling to raise his son single handed. But for being in breach of his position of trust to his 14 year old step-daughter, for the beatings he gave her, and for the fact that she had to give evidence twice, the court imposed a further 4 years.
    
14. In Inoke Buli v The State (unreported) Court of Appeal, Fiji Cr. App. No AAU0003.00S; 24 May 2011 the Court of Appeal approved a sentence of 12 years on an accused for rape of his mentally retarded step-daughter. There was both breach of trust and the accused had a prior conviction for rape as aggravating factors. The force however appeared to be minimal.
    
15. State v Talenasila Criminal Case No HAC 11 of 2010 – The Court held that rape and indecent assault are abominable and are becoming too common in Fiji. The authorities state that rape of children must incur a starting point of 10 years. The accused was sentenced to 14 years imprisonment for the count of rape and 4 years imprisonment for each count of indecent assault. The sentences for the two counts of indecent assault were to be served concurrently but pursuant to Section 17 of the Sentencing and Penalties Decree 2009, the 2 years of those sentences was to be served consecutively to the rape sentence. The total period of imprisonment therefore was a term of 16 years imprisonment.
    
16. State v Sailosi Selebula (2010) HAC 148 of 2010 – The Court held that a single count of rape should properly reflect the complete abhorrence that members of the public feel towards adults who abuse young children in their case. The Court stated that a sentence in the region of 10 years would be appropriate. The accused was sentenced to 15 years imprisonment reduced to 14 years for good character. A non-parole period of 11 years was imposed.
    
17. 17 Further the Court observed in Millbery v R (supra):
    

"60.........we note that the Court's prior to the guideline were regarding relationship rape as serious and deserving heavy sentence."

18. State Counsel filed victim impact report; according to the said report the victim had developed withdrawal symptoms. Initially she had refused to eat, go to school and to move with friends. She had developed to stay alone at home. Parents had brought strict control on her movements and she is kept under strict supervision. Considering the age of the child it appears that she is not enjoying her childhood due to this incident.
    
19. After carefully considering the nature of the offence and mitigating circumstances I commence your sentence at 12 years imprisonment.
    
20. Aggravating Circumstances:
    
    • (a) The victim was 10 years old;
      
    • (b) She is your niece;
      
    • (c) You made the victim insecure;
      
    • (d) Gross breach of trust as an uncle
      
    • (e) Your act took away the dignity of the victim;
      
    • (f) Victim's hymen was not intact.
      

Considering the above aggravating factors I increase your sentence by 6 years. Now your sentence is 18 years imprisonment.

21. Mitigating Circumstances:
    
    • (a) You claim you are the sole bread winner of your family;
      
    • (b) You have a dependent wife;
      
    • (c) You claim you are a first offender;
      
    • (d) Character references submitted from your neighbours are the other dignitories.
      
    • (e) You have a adopted daughter of the age of 4 ½ years to look after;
      
    • (f) You have a depending step mother.
      

Considering your mitigating circumstances I reduce your sentence by 6 years. Now your sentence is 12 years imprisonment.

22. Counsel for the Accused submits to Court to consider a suspended sentence. In support of his application he had submitted 5 case authorities, considering the case laws I find those are decisions made in manslaughter cases. Those are not directly relevant to the present case.
    
23. Considering other submissions of the defence in the light of the facts of the case, I am of the view that this case is completely different in facts and circumstances.
    
24. As discussed in this case and in many other Courts in Fiji the child abuse by family members are becoming more common, this may be due to defenseless and vulnerability of victim children. It is noted that there is a serious increase in child abuse cases. This Court is duty bound to protect the children, while considering the Rights, Privileges and the Convenience of the Accused, should also considers the best interest of the children and the society at large. Therefore the Court after considering all materials before the Court, acts under Section 18 (1) of the Sentencing & Penalties decree and impose 10 years as non Parole Period.
    
25. You are sentenced to 12 years imprisonment and you will not be eligible for Parole until you complete 10 years in prison.
    
26. The Prosecution had applied for Domestic Violence Restraining Order under Domestic Violence Decree. Considering the relationship a permanent DVRO is issued.
    
27. You have 30 days to appeal to the Court of Appeal.
    

S. Thurairaja
Judge

At Lautoka
7th August 2012

Solicitors: The Office of the Director of Public Prosecution for State
Messrs Iqbal Khan & Associates for the Accused.