State v Rasheed - Sentence [2013] FJHC 60; HAC107.2011 (21 February 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC107 of 2011

BETWEEN:

THE STATE

AND:

ABDUL RASHEED

Counsel : Mr. S. Nath & Ms T. Leweni for State
Mr. P. Sharma for the accused

Date of Hearing : 6, 7 & 8 February 2013
Date of Judgment : 8 February 2013
Date of Mitigation : 13 February 2013
Date of Sentence : 21 February 2013

SENTENCE

[1] This accused was charged with two representative counts of rape, one under the Penal Code and another under the Crimes Decree. The charges read as follows:

COUNT 1

Statement of Offence

RAPE: Contrary to Sections 149 and 150 of the Penal Code, Cap. 17.

Particulars of Offence

ABDUL RASHEED s/o Abdul Rahiman, between the 1st day of February, 2005 and the 31st day of December, 2005 at Nasinu in the Central Division, had unlawful carnal knowledge of a girl, namely ARTIKA SONAM SINGH, without her consent.

COUNT 2

Statement of Offence

RAPE: Contrary to Sections 207(1)(2)(a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

ABDUL RASHEED s/o Abdul Rahiman, on the 20th day of March 2011 at Nasinu in the Central Division, had unlawful carnal knowledge of a girl, namely ARTIKA SONAM SINGH, without her consent.

[2] After trial the three assessors returned unanimous opinions of guilty on both counts. The Court agreed and he was convicted on both counts.

[3] The facts of the case are that the accused was introduced to the girl's family by another as someone who could help the girl's mother cure her back and leg which had been causing her chronic pain. The accused claimed to have extraordinary powers of healing and demanded money from the family to buy a tanoa, a tabua and masi. They never saw these purchases because the accused said if they saw them they would go blind. He was able to heal the mother's leg in a week but her back was still paining. The accused continued to take money from the father and performed witchcraft on the ailing mother, even to the extent of "extracting" a piece of chicken from her stomach, by trickery. The family were convinced of his witchcraft powers.

[4] At one time he said that he could tell that someone had put a curse on the daughter of the family, Artika, who is the victim of these two charges. He said he could tell that someone had put something bad into her food at school and that her stomach was full of worms. He asked her father if he could heal her, and the father trusting him, agreed. The accused then told the parents to go, taking their young son with them. He told them to go to Suva Point and to light 14 cigarettes one by one and then come back. When they went away, the victim said that the accused appeared to be possessed by an evil spirit. He took her clothes off, pushed her on the floor and raped her. He continued to do that week by week from 2005 to 2011, usually at 3 or 4 o'clock in the morning and every time sending the other family members to Suva Point to light cigarettes, thereby taking time. Sometimes the accused would hit the victim on the legs.

[5] The last time there was any sexual contact between the two was on the 20th March 2011 when after he had sent the others to Suva Point to light the cigarettes, he grabbed the girl, pushed her on the floor and using a broken glass cut her on the legs. He than raped her. By this time the girl had had enough and when her mother returned she told her about it and a report was made to the Police.

[6] At the end of the trial and before the summing up to the assessors, the accused absconded. He was not able to instruct his counsel to mitigate the penalty for the two rapes. By choosing not to be present, he thereby waives his right to mitigate.

[7] The papers on file disclose that he is 48 years old. He is living in a de facto relationship and has a small business dealing in bottles and scrap metal.

[8] The maximum penalty for rape under both the Penal Code and the Crimes Decree is life imprisonment. The authorities dictate that rape of an adult must attract an immediate term of imprisonment of seven years, and rape of a child must attract a term of at least ten years. To be raped by somebody in a position of trust is highly aggravating.

[9] In recent months, the community has become particularly aware of and censorious of the growing prevalence of rape, particularly rapes of children as young as nine months. Whilst the community, led by women's rights groups and concerned religious bodies, debates ways and means of reducing the incidence of such repugnant conduct, it is for the Courts in sentencing for this crime to show the community that crime of this nature will not go unpunished and heavy sentences will be meted out in an attempt to deter would be sexual abusers.

[10] The two counts that the accused has been convicted of are representative counts of a series of rapes between 9 February 2005 and 20 March 2011. The accused can be sentenced only for the two counts he has been convicted of, and not the uncharged rapes; however the prolonged pattern of rapes is certainly yet another aggravating feature.

[11] As the Court has said in para 6 hereof, there is nothing to be advanced in favour of the accused in mitigation. The highly aggravating features pertaining to the offences are these:

(1) The rapes were effected by the use of witchcraft and fraud.

(2) There was a prolonged pattern of rape over 6 years.

(3) The accused has demonstrated no remorse whatsoever.

(4) He sent the other family members away on a pointless task to give himself time to commit the offences.

(5) He used violence on the girl with broken glass on at least one occasion.

[12] On the 9th February 2005, the victim was but a child of 13 years. For that rape, I take a starting point of ten years imprisonment and for the highly aggravating features, I add six years imprisonment, making a total term of imprisonment of sixteen years.

[13] The second rape he has been convicted of was committed when the girl was 19 years old. I take a starting point of seven years and add the same period of six years for the same serious aggravating features making a total sentence of thirteen years. I order that this term be served concurrently with the term of sixteen years for the first rape.

[14] The sentence will commence from the date that the accused is apprehended and he will serve a minimum term of fourteen years before being eligible for parole.

Paul K. Madigan
JUDGE

At Suva
21 February 2013