State v Naicker - Sentence [2015] FJHC 537; HAC279.2013 (15 July 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 279 of 2013

STATE

V

KISHORE NAICKER

Counsel: Mr. Paka A. for State
Mr. Savou J. for Accused
Hearing: 6th, 7th, 8th July 2015
Summing Up: 9th July 2015
Judgment: 9th July 2015
Sentence: 15th July 2015

SENTENCE

1. Kishore Naicker, you stand convicted after trial for the offences of Rape contrary to section 207 (1) and (2) (b) of the Crimes Decree 2009, and for Assault Causing Actual Bodily Harm contrary to section 275 of the Crimes Decree 2009.
   
2. The evidence revealed that you were the de-facto partner of Reena Kumari with whom you had four children aged between 8 years to 1 ½ years.
   
3. On 21/07/2013 Reena Kumari went to church and returned by 9.30am. You asked her to sleep with you, meaning to have sex with you. When she refused twice you forcefully removed her underpants. Then she pushed you. You started punching her and alleged that she was sleeping with another man and that is why she was not sleeping with you. Then you forcefully inserted your finger into her vagina without her consent. You punched her, kicked her and then bit her thigh, you took a knife from the kitchen and hit her with the flat side of the knife. Your children were watching crying when you assaulted her.
   
4. The maximum sentence for rape is life imprisonment. At the time of the offence you were 35 year old and the victim was 33. Tariff for adult rape is 7 years to 15 years imprisonment.
   
5. In case of Kasim v. State (1994) FJCA 25; AAU 0021j.93S (27 May 1994) it was decided that the starting point for sentencing an adult in any rape case without aggravating or mitigating features, should be a term of imprisonment of 7 years.
   
6. In Mohammed Kasim’s case court said:
   

“While it is undoubted that the gravity of rape cases will differ widely depending on all the circumstances, we think the time has come for this Court to give a clear guidance to the Courts in Fiji generally on this matter. We consider that in 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.”

7. Considering the facts without taking into consideration the aggravating and mitigating factors I take 7 years as the starting point. Aggravating and mitigating factors would be the same for both offences in counts 1 and 2.
   
8. Now I will discuss the aggravating factors. You breached the trust reposed on you by your de-facto partner. You committed the offences in the presence of your children. You used a knife although it was used to assault Reena after you raped her.
   
9. In the Sentencing submission the State counsel has proposed ‘the lack of remorse by letting the victim reveal her experience in court’ to be considered as an aggravating factor.
   
10. The accused pleaded not guilty and court proceeded with the trial whereby the victim had to give evidence and reveal as to how the accused inserted his finger into her vagina which is traumatic to a woman. When an accused pleads guilty it would be considered as a factor to be given a substantial discount to the sentence considering that he had been remorseful. When the accused pleads not guilty it is his right to do so and expect the prosecution to prove the case beyond reasonable doubt.
    
11. D. A. Thomas lecturer in Criminology University of Cambridge in his famous book on ‘Principles of Sentencing’ in page 50 said:
    

“The principles governing the extent to which a sentencer may take into account the offender’s behaviour during the course of the proceedings against him are well settled. A plea of guilty may properly be treated as a mitigating factor, indicating remorse, and will justify a reduction in the sentence below the level appropriate to the facts of the offence; but the defendant who contests the case against him, while not entitled to that mitigation, may not be penalized for the manner in which his defence has been conducted by the imposition of a sentence above the ceiling fixed by the gravity of the offence. Upholding a sentence on an appellant whose co-defendant had been sentenced less severely, the Court stated that ‘there is no suggestion that the judge was imposing on this appellant, because he had contested his guilt, anything beyond what was the full, appropriate sentence for the offences of which he was convicted; ... the Court has frequently stated that ‘it is not right to impose a heavier sentence because a person exercises his right to plead not guilty and require the prosecution to prove the charge’, but that ‘it is a well recognized practice of the courts wherever possible to give some degree of credit in the case of somebody who pleads guilty.”

It was also said that the behavior of the defendant such as attacking a prosecution’s witness in cross examination on his character would not amount to increase the sentence. (page 51)

12. In stating this he referred to cases Lee22.1.73, 6303/C/72,Cash25.5.73, 1398/A/73. Also in page 217;
    

“It has already been shown that a plea of guilty, sometimes described as the best evidence of remorse, justifies the sentence in reducing a sentence below the level appropriate to the facts of the offence, although the offender who contests the case against him may not be sentenced to a term longer than is warranted by the gravity of his offence.”

13. Therefore I will not consider the accused’s lack of remorse by letting the victim reveal her experience in court as an aggravating factor to enhance the sentence.
    
14. In mitigation the mother of the accused gave evidence on factors to be taken into consideration for a lenient sentence.
    
15. The accused is the father of 4 children. He is supporting his disable brother. His children’s expenses were being looked after by the accused as the father.
    
16. Antecedent report of the accused is filed of record. Accused has no previous convictions and he is a first offender.
    
17. I add 4 years for the aggravating factors and deduct 4 years for the mitigating factors. Therefore your sentence for Rape is 7 years.
    
18. Assault Occasioning Actual Bodily Harm carries a maximum sentence of 5 years of imprisonment. Tariff for this offence is an absolute or conditional discharge to 12 month imprisonment. (State v. Salote Tugalala HAC 025/2008. In Salote Tugalala case Justice Shameem identifying the tariff said:
    

“The tariff for this offence appears to range from an absolute or conditional discharge to 12 months imprisonment. The High Court said in beth Joseph v. The Sthe State [2004] HAA 030/04S and&#16<;State v. TevitaAlafi [2004] HAA073/04S, that it is the extent of the injury which determines sentence. The use of a pen knife for instance,ifies a higher starting point. Wherethere has been a delibeeliberate assault, causing hospitalization and with no reconciliation, a discharge is not appropriate."

19. This is a Domestic Violence offence. Aggravating and mitigating factors are almost the same as mentioned before.
    
20. The injuries on the victim are also considered. The victim had a swelling on the forehead, bruises on the thigh. Bruise on the right thigh was a bite mark according to the medical report.
    
21. Victim Impact Statement was filed of record. Although the victim has said that she is afraid that the accused may do harm to her, no such evidence was revealed when she gave evidence. However to prevent any further incidents a permanent Domestic Violence Restraining Order [DVRO] will be issued.
    
22. Considering the above I take 12 months as the starting point. Add 4 months for the aggravating factors and deduct 6 months for the mitigating factors. Now your sentence stands at 10 months imprisonment.
    
23. Your final sentence is:
    

Count No. 1 - 7 years imprisonment.

Count No. 2 – 10 months imprisonment.

Sentences in count 1 and 2 to run concurrently.

You will not be eligible for parole until you serve a period of 5 years. A permanent Domestic Violence Restraining Order will bein place identifying the victim Reena Raj Kumari as the protected person.

Priyantha Fernando
JUDGE

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