State v Kumar [2012] FJHC 894; HAC191.2010 (24 February 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 191 of 2010

BETWEEN:

STATE
PROSECUTION

AND:

CLAUDIUS PRANIL KUMAR
ACCUSED PERSON

Counsel: Ms. J. Cokanasiga for the State
Ms. Savou for Accused

Date of Summing Up: 10th February 2012
Date of Judgment: 13th February 2012
Date of Sentence: 24th February 2012

SENTENCE

1. Claudius Pranil Kumar, you have been found guilty by the unanimous opinions of the 3 assessors and thereafter convicted of one count of Rape contrary to sections 207 (1) and section 207 (2) (a) of the Crimes Decree No. 44 of 2009.
   
2. The facts of the case were that the victim was 11 years old and when her mother was away, you removed her clothes and inserted your penis into her vagina. You further told her that you would assault her if she told this to anybody. When the victim's younger sister started crying, you stopped and went away.
   
3. The maximum penalty for rape if life imprisonment. Sentences in the range of 10 to 15 years are now regarded as appropriate for sexual offences against children. In case of State v AV (2009) FJHC 24, Hon. Justice Goundar said:
   

"Rape is the most serious form of sexual assault....Society cannot condone any form of sexual assaults on children....Sexual offenders must be deterred from committing this kind of offences"

4. The starting point for rape of a child was set to be 10 years. Drotini v The State (2006) FCA 26; AAU 0001.2005S (26 March 2006), The State v Joji Mara FJHC 229 HAC 038.2010 (21 April 2011)
   
5. The aggravating factors in this case are that the age of the victim was 11 years, the accused threatened the victim not to tell others or that he would assault her. The crime was committed inside the victim's own house where she could expect as the safest place for her.
   
6. In mitigation, it is submitted on behalf of you, that you are 21 years old and a first offender. It is submitted that you were a less fortunate person as you lived with the support of one parent. You cut short your schooling to be the provider of the family and to assist your mother. Further you look after your mother who is sick.
   
7. I pick 10 years as the starting point. I add 3 years to reflect the aggravating factors. I reduce 3 years for your mitigating factors mentioned above including your age, that you are a first offender and your 14 day period in remand.
   
8. Finally you are sentenced to 10 years imprisonment.
   
9. Considering the circumstances of the case and that the accused was 20 years of age at the time of the offence and that he is a first offender, I find that it is inappropriate to fix a non parole period. Therefore acting in terms of section 18 (2) of the Sentencing and Penalties Decree 2009, I decline to fix a non parole period.
   

Priyantha Fernando
JUDGE

At Suva
Thursday 23rd February 2012