State v Mousin [2015] FJHC 669; HAC024.2014LAB (17 September 2015)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 024 OF 2014LAB

STATE

V

MOHAMMED MOUSIN

Counsels: Ms. A. Vavadakua for State
Mr. M. Fesaitufor Accused

Hearings: 26 and 27 August, 2015
Summing Up: 28 August, 2015
Judgment: 28 August, 2015
Sentence: 17 September, 2015

SENTENCE

1. In a judgment delivered on 28 August, 2015, the court found you guilty and convicted you on the following information:

Statement of Offence

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

Particulars of Offence

MOHAMMED MOUSIN on the 09th day of July 2011 at Labasa in the Northern Division penetrated the vagina of M.S.A. with his penis without M.S.A's consent.

2. The brief facts were as follows. On 9 July 2011, the complainant (PW1) was 18 years old. She was the de facto-wife of your first cousin. Her husband was 25 years old. You were 22 years old at the time. At about 11am on 9 July 2011, PW1's in-laws were out of the house. She was alone. You came into their house. You knew her husband and in-laws were out of the family house at the time. You forcefully took her to the bedroom, forcefully took off her clothes, and forcefully had sexual intercourse with her, without her consent. You knew she was not consenting to sex with you at the time, because she resisted you to no avail.

3. "Rape", as an offence, had always been considered serious by society and the law makers of this country. It is an unwanted invasion of a person's body and dignity, and to show the public disgust at the offence, the maximum penalty prescribed is life imprisonment. Previous case laws on the offence had set the tariff a sentence between 7 to 16 years imprisonment. The actual sentence will depend on the aggravating and mitigating factors.

4. The aggravating factors, in this case, were as follows:

(i) Domestic Violence Offence. You were related to the complainant's de facto-husband. You were his first cousin. As such, you were supposed to respect your first cousin's wife by not jumping into bed with her, when he was out at work. Not only that, you offended against her by raping her. This was a domestic violence against the complainant, her husband and her in-laws. You had no right to treat your relatives in this way. A custodial sentence is necessary to teach you how to relate properly with others.

(ii) Breach of Trust. As the complainant's husband's first cousin, the complainant trusted you when you came into their house on 9 July 2011. She didn't expect you to offend against her by raping her. When you offended against her, you breached the trust she had in you.

(iii) When you offended against the complainant, you showed no regard to her human rights and her personal dignity.

5. The mitigating factors were as follows:

(i) At the age of 26 years, this is your first offence;

(ii) You are married, with one child (son) aged 4 years old, and the sole bread-winner;

(iii) You had been remanded in custody for approximately 60 days.

6. I start with 7 years imprisonment. I add 4 years for the aggravating factors, making a total of 11 years imprisonment. I deduct 1 year for being a first offender, another 1 year for mitigating factor in paragraph 5 (ii) and 6 months for mitigating factor in paragraph 5(iii). Total deduction is 2 ½ years from 11 years, leaving a balance of 8 ½ years imprisonment.

7. Mr. Mohamed Mousin, for raping the complainant on 9 July 2011, at Labasa in the Northern Division, I sentence you to 8½ 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.

SalesiTemo
JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Labasa
Solicitor for the Accused : Office of the Legal Aid Commission, Labasa