State v Kishore - Sentence [2015] FJHC 334; HAC75.2014 (6 May 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION
Criminal Case No: HAC 75 of 2014

STATE

v.

SUDESH ANAND KISHORE

Counsel: Ms J Fatiakiforthe State
Mr R Kumar for the Accused

Dates of Hearing: 29th April 2015 – 01st May 2015
Date of Summing Up: 04th May 2015

Sentence: 06th May 2015

SENTENCE

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

1. SudeshAnand Kishore, you stand convicted of two counts of rape. 1st count contrary to Sections 149 and 150 of the Penal Code Cap 17 and 2nd count contrary to Sections 207 (1) and (2) (a) (3) of the Crimes Decree No. 44 of 2009.

2. The victim 'SL' was adopted by Bimla Wati when 'SL' was one day old. You were living with Bimla Wati as her de-facto partner and the victim 'SL'also was staying with you and Bimla. Therefore, the victim 'SL' was under the care and custody of Bimla and you. You raped 'SL' on several occasions during the years 2010 and 2011.

3. The victim 'SL' was 9 years old when you raped her.

4. The maximum punishment for Rape is imprisonment for life. The tariff for rape is now settled in Fiji. It is 10-16 years of imprisonment. (Raj-v-State [2014] FJSC 12; CAV 003.2014 (20 August 2014).

In case of State-v-AV[2009] HAC 192.2008 (21 Feb 2009) Justice Goundar said;

"Rape is the most serious form of sexual assault ......Society cannot condone any form of sexual assault on children ............... Sexual offenders must be deterred from committing this kind of offences."

5. Medical report of the victim is filed of record with the victim impact statement. The doctor who examined the victim has said in her report that the child was showing some signs of psychological withdrawal. You have raped her over a long period of time. This will surely scare her for the rest of her life.

6. On both counts 1 and 2, without taking into account the aggravating and mitigating factors, I take 12 years as the starting point.

7. The aggravating factors are that this is a serious breach of trust, as the victim 'SL' was under your care and custody. You were the de-facto partner of her adoptive mother Bimla. The victim would have expected you to look after her, instead you raped her. The impact on the victim that is mentioned in the medical report also considered.

8. I add 5 years for the aggravating factors and now your interim sentence is 17 years.

9. I consider the mitigating factors submitted on behalf of you. You are a first offender and your previous good behavior is considered. I also consider that you are 30 years old and that you are a father of 2 children. Your personal circumstances are also considered. You have shown no remorse and therefore, you will not get a discount for that. I deduct 3 years for the mitigating factors. I deduct a further 1 year for your period in remand in this case.

Now your final sentence on each count is 13 years imprisonment. I order that the sentences in counts 1 and 2 to run concurrently.

Your non parole period will be 12 years.

Priyantha Fernando
Judge

At Lautoka
06th May 2015

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