State v Lal - Sentence [2015] FJHC 613; HAC029.2014LAB (26 August 2015)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 029 OF 2014LAB

STATE

V

HIND MUNISHWAR LAL

Counsels : Mr. L. Fotofili for State
Ms. L. Raisua for Accused

Hearings : 24 and 25 August, 2015
Summing Up : 26 August, 2015
Judgment : 26 August, 2015
Sentence : 27 August, 2015

SENTENCE

1. In a judgment delivered yesterday, the court found you guilty and convicted you on the following counts in the following information:
   

FIRST COUNT

Statement of Offence

RAPE: Contrary to section 207 (1) and (2) (a) of the Crimes Decree 44 of 2009

Particulars of Offence

HIND MUNISHWAR LAL on the 18th day of February 2014 at Labasa in the Northern Division had unlawful carnal knowledge of S. A. C. without her consent.

SECOND COUNT

Statement of Offence

RAPE: Contrary to section 207 (1) and (2) (a) of the Crimes Decree 44 of 2009

Particulars of Offence

HIND MUNISHWAR LAL on the 24th day of February 2014 at Labasa in the Northern Division had unlawful carnal knowledge of S. A. C. without her consent.

THIRD COUNT

Statement of Offence

RAPE: Contrary to section 207 (1) and (2) (a) of the Crimes Decree 44 of 2009

Particulars of Offence

HIND MUNISHWAR LAL on the 4th day of March 2014 at Labasa in the Northern Division had unlawful carnal knowledge of S. A. C. without her consent.

FOURTH COUNT

Statement of Offence

RAPE: Contrary to section 207 (1) and (2) (a) of the Crimes Decree 44 of 2009

Particulars of Offence

HIND MUNISHWAR LAL on the 5th day of March 2014 at Labasa in the Northern Division had unlawful carnal knowledge of S. A. C. without her consent.

2. The brief facts were as follows. You were 25 years old and the complainant was 18 years old on 18 February 2014. The complainant was a first year student at Fiji National University, while you had been a student there for 5 years. You enticed her to your flat at Labasa, on the pretext of giving her some FNU papers and textbook. When she was in your flat, you forced yourself on her and raped her. You then would not allow her to return home, unless you took her naked pictures.

3. She was under duress when you took her naked pictures via your mobile phone camera. Your later sent her home, but warned her to come and have sex with you in future, as and when you pleased, otherwise you will put her naked pictures in Facebook. She was stunned and helpless. You phoned her on three occasions (i.e. 24 February, 4 and 5 March 2014) to come and see you; otherwise you will implement your threats. She came to you and you raped her on those occasions.

4. "Rape", as a criminal offence, had always been viewed seriously by the lawmakers of this country. It is a serious violation of a person's dignity. It demeans a person and is the worst form of sexual assault. Consequently, it carries a maximum sentence of life imprisonment. Previous case laws had set the tariff for the rape of an adult a sentence between 7 to 15 years imprisonment: see Mohammed Kasim v State, Criminal Appeal Case No. 14 of 1993, Fiji Court of Appeal; State v Marawa, Criminal Case HAC 016 of 2003, High Court and State v Lepani Veimusu, Criminal Case No. HAC 257 of 2010, High Court. The actual sentence will depend on the aggravating and mitigating factors.

5. In this case, the aggravating factors were as follows:

(i) Trickery and Personal Deceit. You tricked and deceived the complainant, in order to have sex with her, without her consent. You knew she was a first year Fiji National University (FNU) student in February 2014, and you knew she was vulnerable. You had been studying at the FNU for the previous 5 years. You tricked her into your flat to give her "some papers and textbook". You knew she was a private student and needed help. You had no papers and textbook. When she arrived in your flat, you attacked her and raped her. Then you cunningly took her naked pictures via your mobile phone camera. You then threatened her to come to you for sex in the future; otherwise you will put her naked pictures in Facebook. On 3 occasions, you called her. Under duress, she submitted to your threat. You raped her three more times. Your behaviour was utterly despicable, and you must not complain when your liberty is taken away to pay for what you did to the complainant.

(ii) When you offended against the complainant, you showed no regards for her human rights and dignity. You had no regards for her right to live in peace. In fact, you have ruined her education, because she is now not at FNU.

6. As for the mitigating factor, I can only find one, that is, you had been remanded in custody from 10 March 2014 to 28 October 2014, when you were imprisoned (7 months 18 days). Then, when released in April 2015, you were remanded in custody until today (4 months). So, in total, you were remanded in custody for approximately 11½ months.

7. On count no.1, I start with a sentence of 12 years imprisonment. I add 3 years for the aggravating factors, making a total of 15 years imprisonment. For time already served while remanded in custody, I deduct 1 year, leaving a balance of 14 years imprisonment.

8. I repeat the above process and sentence for count no.2, 3 and 4.

9. The summary of your sentences are as follows:

(i) Count No.1 – Rape : 14 years imprisonment.

(ii) Count No.2 – Rape : 14 years imprisonment.

(iii) Count No.3 – Rape : 14 years imprisonment.

(iv) Count No.4 – Rape : 14 years imprisonment.

10. Because of the principle of totality of sentencing, I direct that all the above sentences are to be made concurrent to each other, that is, a final sentence of 14 years imprisonment.

11. Mr. Hind Munishwar Lal, for raping the complainant on four different occasions in February and March 2014, at Labasa in the Northern Division, I sentence you to 14 years imprisonment, with a non-parole period of 12 years imprisonment, effective forthwith. 12. The name of the complainant is permanently suppressed to protect her privacy.

13. The accused's mobile phone (Prosecution Exhibit No.1) and the USB (Prosecution Exhibit No.2) are to be destroyed by the Court Registry once the appeal period to the superior courts expires. This is done to protect the privacy of the complainant.

Salesi Temo

JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Labasa

Solicitor for the Accused : Office of the Legal Aid Commission, Labasa