State v Hakik [2015] FJHC 242; HAC229.2011 (9 April 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.:HAC 229 OF 2011

STATE

v

MOHAMMED HAKIK

Counsels : Mr. Alvin Singh for the State
Ms. Senikavika Jiuta for the Accused

Date of Sentence : 9 April 2015
(Name of the victim is suppressed she is referred to as FS)

SENTENCE

1. The accused is before the Court for sentence, after being convicted to the following charge.
   

Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (a) of the Crimes Decree 2009.

Particulars of Offence

MOHAMMED HAKIK between the 1st day of November 2011 and the 31st day of November 2011, at Nadi in the Western Division, penetrated his penis into the vagina of FS, without her consent.

2. You pleaded not guilty to above charge. Following trial lasting two days in this Court, you were found guilty on above count against you.
   
3. After considering the unanimous verdict of Guilty of the assessors and having reviewed the evidence and summing up in this trial, the Court decided to concur with the verdict of guilty in respect of the charge and also found you guilty of the charge.
   
4. The following facts were proven in evidence during the trial. Prosecution case was based on the evidence of the victim. She was 12 years old at the time of the incident. Accused is her step-father. The accused had asked the complainant to put her brother to sleep. Then accused had come and got inside the blanket. Then accused had removed her clothes and his clothes. Then accused had rubbed his penis on the private part of the victim.
   
5. Her step brother had seen the accused on top of the complainant and the blanket going up and down. He confirms the evidence of the complainant. According to the doctor medical findings are that the hymen was open and not intact.
   
6. The complainant and step brother had told the mother about the incident soon after the incident. But she had not taken any steps to report the matter to Police. When she informed neighbor she took them to the police station to make a report.
   
7. In his caution interview the accused had admitted the offence.
   
8. According to the Crimes Decree the maximum punishment for rape is Imprisonment for life. It is a serious offence.
   
9. The tariff for rape is well settled since the Judgment of Hon. Mr. Justice A.H.C.T. Gates inState v Marawa. [2004] FJHC 338; HAC 0016T.2003S (23 April 2004). The starting point of a rape of an adult is 7 years. The tariff is 7 years to 15 years.
   
10. In Mohamed Kasim v The State (unreported) Fiji Court of Appeal Cr. Case No. 14 of 1993; 27 May 1994, The Court of Appeal observed:
    

"We consider that at any rape case without aggravating or mitigating features the starting point for sentencing an adult should be a term of imprisonment of seven years. It must be recognized by the Courts that the crime of rape has become altogether too frequent and that the sentences imposed by the Courts for that crime must more nearly reflect the understandable public outrage. We must stress, however, that the particular circumstances of a case will mean that there are cases where the proper sentence may be substantially higher or substantially lower than that starting point."

11. The tariff for the rape of children differs from that of adults and takes the tariff of 10 to 16 years. It was held by Court of Appeal in Raj v State [2014] FJCA 18; AAU0038.2010 (5.3.2014) Rapes of juveniles (under the age of 18 years) must attract a sentence of at least 10 years and the accepted range of sentences is between 10 and 16 years.This was upheld by the Supreme Court.
    
12. In State v Mario Tauvoli [2011] FJHC 216, HAC 027.2011 Hon. Mr. Justice Paul Madigan held that:
    

"Rape of children is a very serious offence in deed and it seems to be very prevalent in Fiji at the time. The legislation had dictated harsh penalties and the Courts are imposing those penalties in order to reflect society's abhorrence for such crimes. Our nation's children must be protected and they must be allowed to develop to sexual maturity unmolested. Psychologists tell us that the effect of sexual abuse on children in their later development is profound."

In this case 42 year step father was sentenced for 13 years with non parole period of 10 years for digital rape of 14 year old step daughter.

13. In State v Anthony [2012] FJHC 1013; HAC 151.2010 Hon. Mr. Justice Priyantha Nawana held that:
    

"The accused's engagement in his unilateral sexual activity with a little girl who was insensitive to such activity is most abhorrent. This kind of immoral act on a little girl of MB's standing is bound to yield adverse results and psychological trauma, the effect of which is indeed difficult to foresee and asses even by psychologists and sociologists. The depravity of the accused in committing the offence should be denounced to save little children for their own future; and, the men of the accused's caliber should not be allowed to deny the children of their legitimate place in the community. In passing down the sentence in case of this nature, deterrence is therefore, of paramount importance."

14. Considering the above, I commence your sentence at 11 years imprisonment for the charge of Rape.
    
15. The aggravating factors are:
    
    • (i) Serious breach of trust by the victim towards you as step-father
    • (ii) Victim is of young age the age gap is more than 20 years
    • (iii) Lack of remorse, You let the victim relive her experience in Court,
    • (iv) You took advantage of the victim's vulnerability
      
16. I add four years for above aggravating factors. Now your sentence is 15 years.
    
17. The mitigating factors are:
    
    • (i) At the age of 38 you are first offender
      
18. I deduct 1 year for the above mitigating factor. Now the sentence is 14 years.
    
19. You were in remand from 4.12.2011 to 30.1.2012 for a period of 2 months after conviction for a period of 13 days. That period to be deducted from your sentence acting under Section 24 of the Sentencing and Penalties Decree. Now your sentence is 13 years 9 months imprisonment.
    
20. Considering Section 18 (1) of the Sentencing and Penalties Decree, I impose 11 years as non- parole period.
    
21. Having considered the Domestic nature of the relationship you had with the victim, I order a permanent Domestic Violence Restraining Order (DVRO) in place, identifying victim FS as the protected person. You are hereby ordered not to have any contact with the victim directly or by any other means, unless otherwise directed by this Court.
    
22. Your sentences are as follows:
    
    • (i) Count of Rape - 13 years 9 months
      

Summary

23. You are sentenced to 13years 9 monthsimprisonment. You will not be eligible for parole until you complete serving11years of imprisonment.
    
24. 30 days to appeal to Court of Appeal.
    

Sudharshana De Silva
JUDGE

At Lautoka
09th April 2015

Solicitors: Office of the Director of Public Prosecution for the State
Office of the Legal Aid Commission for the Accused