State v Sami [2015] FJHC 398; HAC161.2013S (29 May 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 161 OF 2013S

STATE

vs

VICKY ANAND SAMI

Counsels : Mr. M. Vosawale for State
Mr. J. Reddy for Accused
Hearings : 31 March and 1 April, 2015
Summing Up : 2 April, 2015
Judgment : 2 April, 2015
Sentence : 29 May, 2015

SENTENCE

1. In a judgment delivered on 2 April 2015, the court found you guilty and convicted you on the following information:
   

Statement of Offence

RAPE: Contrary to section 207 (1) and (2) (b) and (3) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

VICKY ANAND SAMI on the 20th day of March 2013, at Nasinu, in the Central Division, penetrated the vagina of M. D with his fingers, a child under the age of 13 years.

2. The brief facts were as follows. On 20 March 2013, you and the child complainant were neighbours. You were 25 years old, at the time, and the child complainant (PW1) was 11 years 10 months old. As neighbours, your families were on friendly terms with each other, until this incident. At 8pm on 20 March 2013, PW1 was alone at home with her younger siblings. You had some left-over pot of curry. You called PW1 to get the pot of curry to her home. She came. You were alone in your house. As she was holding onto the pot of curry, you lifted up her skirt, pulled her panty down, and inserted your finger into her vagina. PW1 felt your finger into her vagina and she said, it was painful. The matter was reported to the police, and hence the present charge.
   
3. Rape, as a criminal offence, is a serious one. Society has a dim view of it, and it's law makers had prescribed a maximum sentence of life imprisonment (section 207(1), (2)(b) and (3) of the Crimes Decree 2009). The tariff now is a sentence between 10 to 16 years imprisonment: per His Lordship The Hon Chief Justice in Anand Abhay Raj v The State, Criminal Appeal No. CAV 0003 of 2014, Supreme Court of Fiji (20 August 2014). The final sentence will depend on the aggravating and mitigating factors.
   
4. The aggravating factors, in this case, were as follows:
   
   • (i) Breach of Trust as Neighbours: Your relationship with the child complainant's family was friendly until this incident. You normally provided them with left-over food, and as a result, you were trusted by the child complainant, and her family. When you offended against her, while she was getting left-over food from you, you breached the trust she had in you.
     
   • (ii) Rape of a child: As always, the court takes a dim view of people who rape children. By offending against the complainant, you showed utter disregard to her human rights and dignity.
     
5. "The mitigating factors were as follows:
   
   • (i) At the age of 27 years, this is your first offence;
     
   • (ii) You have been remanded in custody since 2 April 2015, that is, approximately 2 months ago.
     
6. I start with a sentence of 10 years imprisonment. I add 2 years for the aggravating factors, making a total of 12 years imprisonment. I deduct 2 months, for time served while remanded in custody, leaving a balance of 11 years 10 months. For being a first offender, I deduct 1 year 10 months, leaving a balance of 10 years imprisonment.
   
7. Mr. Vicky Anand Sami, for raping the child complainant, I sentence you to 10 years imprisonment, with a non-parole period of 7 years imprisonment, effective forthwith.
   
8. 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 : Reddy & Nandan Lawyers, Suva.