State v Kumar [2015] FJHC 203; HAC030.2012 (20 March 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC 030 of 2012

STATE

v.

1. NITESHNI KUMAR
2. RAVINESH SINGH

Counsel: Mr. Nath S and Ms. Chowdhury M for State
Mr. Kumar S for Defence

Dates of Hearing: 9th, 10th, 11th and 12th, March 2015
Date of Summing Up: 16th March 2015

Date of Judgment: 17th March 2015
Date of Sentencing: 20th March 2015

SENTENCE

[Name of the victim is suppressed. The victim will be referred to as S.S.]

1. Ravinesh Singh, you stand convicted for one count of Rape contrary to Section 207 (1) and (2) (a) and (3) of the Crimes Decree.
   
2. Niteshni Kumar, you stand convicted for one count of Aiding and Abetting Rape contrary to Sections 45 (1), 207 (1) and (2) (a) and (3) of the Crimes Decree No. 44 of 2009. In terms of Section 45 (1) of the Crimes Decree, a person who aids and abets the commission of an offence by another person is taken to have committed that offence and is punishable accordingly.
   
3. The victim was 12 years old at the time of the offence. You Niteshni Kumar went to the victim 'S.S.'s house and brought her to your stall pretending to get her assistance to sell watermelon. Thereafter you called your husband Ravinesh Singh to come to the stall saying 'come she is here'. Then Ravinesh came and dragged 'S.S'. to the nearby bush and raped her, causing injury to her vagina. As the victim 'S.S.' started bleeding, to conceal the crime from the mother, Niteshni informed 'S.S.'s mother that 'S.S.' got her menses.
   
4. Court will denounce rape of children. Niteshni, you intentionally assisted your husband to rape the victim child. The offence that you have committed is one of moral turpitude. The child came with you to the stall trusting that you or your husband would not cause any harm to her. What you did was hideous of a mother of four children and as a human being. In any society your actions as husband and wife are condemned and deplored wholly.
   
5. Offence of rape carries a maximum sentence of life imprisonment. The tariff for the offence of Rape of a child is now settled at 10 – 16 years. (Raj v State (2013) FJSC 12; CAV0003.2014 (20 August 2014)). The victim 'S.S.' was 12 years old when this offence was committed on her.
   
6. The victim impact statement was filed in court. In her evidence 'S.S.' said that she felt bad after the incident and that she did not go to school as she felt uncomfortable. This will be a blemish in her life.
   
7. I take 12 years as the starting point on both the accused persons.
   
8. For Ravinesh, the aggravating factors are that you caused injury to the child when you raped her. The impact on the victim as given in evidence is also considered.
   
9. Your mitigating factors are that you are a first offender and Court also considers that you are a father of four small children.
   
10. I add 5 years for the aggravating factors and deduct 4 years for the mitigating circumstances. Now your sentence stands at 13 years.
    
11. For Niteshni, there are no aggravating factors other than misusing the child who came to help you on your request and responsibility. The impact on the victim is also considered.
    
12. Your mitigating factors are that you are a first offender and mother of four small children. I take regard of the fact that there will be no one to take parental responsibility for your children for their welfare and interests.
    
13. I add 3 years for your aggravating factors and now your sentence stands at 15 years.
    
14. I deduct 8 years for the mitigating factors. Your sentence now stands at 7 years. Your sentence is below the tariff set in this country but this Court has done that because of the circumstances your children will find themselves in after both parents are in custody.
    
15. Ravinesh cannot be given the same consideration as he is the person who has caused the actual harm. I am not at all condoning what you did to be less serious than what Ravinesh did but one of you needs to be given an opportunity to look after your children after being punished for the crime you have committed.
    
16. I therefore grant the concession to you after exercising my discretion.
    
17. Now the final sentence stands at:
    

1st Accused - Niteshni Kumar - 7 years

2nd Accused - Ravinesh Singh - 13 years

18. For the 2nd Accused your non parole period will be 11 years.
    
19. Acting in terms of s. 18(2) of the Sentencing and Penalties Decree 2009 and considering the factors mentioned above, I decline to fix a non-parole period for the 1st Accused.
    
20. Finally, I direct the Registry to inform the Director of Social Welfare Department of this sentence and furnish them with a copy of the same so that appropriate arrangements can be made for the children's welfare if needed.
    

Priyantha Fernando
Judge

At Suva
Office of the Director of Public Prosecutions for State
Office of Sunil Kumar Esq. for both accuseds