State v Hussain - Sentence [2015] FJHC 161; HAC248.2013S (6 March 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 248 OF 2013S

STATE

vs

MUBARAK HUSSAIN

Counsels : Ms. A. Vavadakua for State
Accused in Person
Hearings : 2, 3 and 4 March, 2015
Summing Up : 5 March, 2015
Judgment : 5 March, 2015
Sentence : 6 March, 2015

SENTENCE

1. In a judgment delivered yesterday, the court found you guilty of "burglary" [count no. 1], "rape" [count no. 2 and 3] and "sexual assault" [count no. 4]. You were convicted accordingly on those counts.
   
2. The brief facts were as follows. On 31 May 2013, you were 40 years old, the female complainant was 49 years old, and her husband was 55 years old. You were a close friend of the complainant's husband, and often visited their home to drink grog with him. On 31 May 2013, between 9pm and 10pm, you invaded the complainant's house, went into her bedroom while wearing a mask and brandishing a cane knife, forcefully tied her up, and later raped her twice. You also sexually assaulted her by kissing her breasts. After committing the offences, you fled the crime scene.
   
3. I will start with the offence of "rape", as it was the most serious offence. It carries a maximum sentence of life imprisonment, although the tariff set by previous case laws was a sentence between 7 to 15 years imprisonment. "Burglary" carries a maximum sentence of 13 years imprisonment, although previous case laws had set the tariff a sentence between 18 months to 3 years imprisonment. "Sexual assault" carries a maximum sentence of 10 years imprisonment. Previous case laws had often set the tariff between 1 to 4 years imprisonment. Of course, the final sentence will depend on the aggravating and mitigating factors.
   
4. In this case, the aggravating factors, were as follows:
   
   • (i) Breach of Trust: The complainant's husband was a close friend of yours. He treated you like a son. You often went to his house to drink grog. In fact, the complainant's family treated you as a family friend, and opened their house to you. Unbeknown to them, you were really nothing but a conniving con artist. When your friend's wife was left alone, at the material time, you raided their house, held a knife against her, sexually assaulted and raped her. You certainly breached the trust they had in you;
     
   • (ii) Use of Extreme Violence: You used a cane knife to threaten and subdue the helpless and vulnerable complainant at the material time. Then you proceeded to tie her hands and legs with pieces of cloth and tapes. Then you blindfolded her and taped the cloth on her face, and also taped her mouth. You completely subdued her when offending against her. This was obviously a frightening experience for the complainant.
     
   • (iii) After committing the crimes against the complainant, you returned to their house, and pretend to sympathize with them, and drank grog with them until the morning. This was the height of all evil and blatant deceit.
     
5. The mitigating factors were as follows:
   
   • (i) At the age of 41 years old, this was your first offending;
     
   • (ii) You have been remanded in custody for the previous 1 year 8 months.
     
6. I will start with the "rape" offences, as they are the most serious of the offences. On count no. 2 [rape], I start with a sentence of 15 years imprisonment. I add 4 years for the aggravating factors, making a total of 19 years imprisonment. I deduct 1 year 8 months for the time spent in remand, leaving a balance of 17 years 4 months. I deduct a further 1 year 4 months for being a first offender, leaving a balance of 16 years imprisonment.
   
7. I repeat the above process and sentence for count no. 3 [rape].
   
8. On the "burglary" charge [count no. 1], I start with 1 ½ years imprisonment. I add 2 years for the aggravating factors, making a total of 3 ½ years imprisonment. I deduct 1 ½ years for the mitigating factors, leaving a balance of 2 years imprisonment.
   
9. On the "sexual assault" charge [count no. 4], I start with a sentence of 2 years imprisonment. I add 1 year for the aggravating factors, making a total of 3 years imprisonment. I deduct 1 year for the mitigating factors, leaving a balance of 2 years imprisonment.
   
10. In summary, your sentences are as follows:
    
    • (i) Count no. 1 : Burglary : 2 years imprisonment
    • (ii) Count no. 2 : Rape : 16 years imprisonment
    • (iii) Count no. 3 : Rape : 16 years imprisonment
    • (iv) Count no. 4 : Sexual assault : 2 years imprisonment
      
11. Because of the totality principle of sentencing, I direct that all the above sentences are made concurrent to each other, thus making a final sentence of 16 years imprisonment.
    
12. Mubarak Hussain, for burgling, sexually assaulting and raping the complainant on 31 May 2013, at Nausori in the Central Division, I sentence you to 16 years imprisonment, with a non-parole period of 15 years, effective forthwith.
    
13. The name of the complainant is permanently suppressed to protect her privacy.
    

Salesi Temo
JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Suva.
Solicitor for the Accused : Accused in Person.