IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC127 of 2011

BETWEEN:

THE STATE

AND:

BIJENDRA

BEFORE : HON. MR. JUSTICE PAUL MADIGAN

Counsel : Mr. L. Fotofili for the State
Mr. T. Sharma for the accused

Dates of hearing : 8 and 9 April, 2013
Date of sentence : 11 April 2013

SENTENCE

[1]	The accused was found guilty of and convicted of rape in this court, following a trial lasting two days before three assessors. He had pleaded not guilty to the charge. The charge was a representative charge and alleged that Bijendra (also known as Manoj) had raped one (name suppressed) at Nasinu on the 28th November 2010. In fact the State ran the case of the basis that the victim had been raped several times in the early hours of the 28th November 2010 but he has been convicted of one count and will be sentenced for one count.

[2]	The disturbing facts of the case are that the victim who we shall call Ms P., being 24 years of age at the time, had been suffering from rather serious acne. She had sought medical treatment for the condition but to no avail. The aunt with whom she was living suggested she consult a neighbour known to have witchcraft powers to heal. They did in fact consult the neighbour who is the accused. In two preliminary meetings the accused performed a rudimentary sevusevu ceremony and claimed to have invoked the spirit of his family god. He was also able to impress Ms P. with details of her personal life (which he had presumably got at an earlier time from the aunty.) The accused claimed to have discerned that Ms P. had greater problems than acne and she could only be cured by going through the "process." The "process" was not explained to Ms P. but only discussed between her aunt and the accused.

[3]	On the afternoon of 27th November 2010, the accused came to the house of Ms P. and her aunt with paraphernalia to do the "process." By this stage Ms P. had learned that the process involved sexual intercourse and she was shocked. She argued with her aunt and said she didn't want to do it. In the evening of the 27th the accused prepared and drank a lot of yaqona, smoked cigarettes and claimed to have invoked the spirits of two gods. He impressed upon Ms P. that sex was her cure and without it she and her family would perish.

[4]	At about 1am on the 28th November, Ms P. was pushed into her bedroom with the accused – the door was locked and the aunt turned the T.V. on with full volume. The accused stripped Ms P. and stripped himself and after kissing her all over forced her to perform a sexual act on him. After that he raped her. By Ms P's account he raped her 5 times throughout the night, but the accused told the court that it was 3 times.

[5]	At 7.30am he left saying that the first process was complete. Ms P. slept all day and the following day after making complaint to her employer, a report was made to the Police and she was medically examined.

[6]	The medical examination revealed evidence of bruising and bleeding in her genitalia which was indicative of sexual abuse.

[7]	The accused gave evidence and claimed vehemently that Ms P. consented to the 3 sexual acts on the 28th November, in the belief that she would be cured of her acne and of other ailments. He showed no remorse for his deeds whatsoever and appeared to the Court to enjoy telling of his invocation of spirits and his manipulation of the victim.

Mitigation

[8]	Counsel for the accused tells me that his client is 39 years old and married with 3 children who are all schooling. He rents the family home at Nakasi for $180 per month and sells vegetables to raise money to pay the rent and support his family. He has no previous record.

[9]	Most of his relatives are in Vanua Levu and there is nobody in Viti Levu to care for his family if he is imprisoned. Counsel for the accused on that basis makes the totally unrealistic application that this Court in defiance of all authority pass a non-custodial sentence. He claims to be remorseful, although the Court has seen no evidence of that throughout the trial. He asks me to consider the fact that there was no serious violence used on the victim, a submission that is not borne out by the evidence which disclosed bruising and contusions. The lack of serious violence is more than countered by the deception practiced in the affair. 

[10]	State counsel asks the Court to consider the breach of trust occasioned to the victim and the degree of planning that went into the deception. He submits a Victim Impact Report which discloses the still present insecurity and shame being experienced by the victim as well as her inability to relate socially to others.

The Law

[11]	The maximum penalty for rape is life imprisonment and the minimum term for rape of an adult (which Ms P. indeed was) is seven years' imprisonment (Mohammed Kasim CA 14/93).

[12]	The sentence will of course be enhanced should there be aggravating features present at the time of the rape charged.

[13]	The State, in making the charge a representative count, alleges that there were five acts of rape on November 28th, 2010; the accused claims that there were but three. Giving the accused the benefit of that dispute, the Court will take the additional two acts as aggravating to the charge.

[14]	Further aggravation comes from the lack of remorse of the accused evidenced throughout the trial, but the greatest aggravating feature is the accused's use of subterfuge and deceit in his ploys to have sex with Ms P. He knew that he wasn't able to cure her acne in this manner but he manipulated both Ms P. and her aunt in his plan to "process" Ms P. or to seduce her.

[15]	In a similar case before this Court earlier this year (Abdul Rasheed HAC107 of 2011), a sentence of 13 years was passed on the accused.

[16]	I take a starting point for this one rape of eight years and to reflect the lack of remorse and the humiliation of additional acts of rape I add three years to that total making an interim total of eleven years. For the subterfuge, deceit and misrepresentation of the meaning of the act I add yet another 4 years bringing the total sentence to 15 years imprisonment.

[17]	For the limited mitigation available to the accused which is represented by his family circumstances and his hitherto clear record, I reduce the sentence by 2 years meaning that the accused will be sentenced to a term of imprisonment of 13 years. He will serve a minimum term of 11 years before being eligible for parole.

Paul K. Madigan
JUDGE

At Suva
11 April 2013