State v Balak [2015] FJHC 709; HAC260.2014 (1 October 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION.

CRIMINAL CASE NO.HAC 260 OF 2014

STATE

V

SHIU BALAK

Counsel: Ms D. Kumar with Ms U. Tamanikaiyaroi for the State
Mr. T. Sharma for the accused.

Date of conviction: 30September, 2015
Date of Sentence: 1 October, 2015

SENTENCE

[1] The accused was convicted after trial in this court of one count of statutory rape of a 12 year old girl and two counts of defilement of the same girl after she had turned 13 years of age.

[2] The facts of the case are that the accused and the girl's father were co-workers on a dairy farm in Tailevu. They both lived nearby. The two were on friendly terms and the complainant Ruby (not her real name) would call the accused "Uncle". It was agreed between the two men that Ruby could assist the accused doing chores such as cleaning his van.

[3] In January 2014 when Ruby was 12 years and 11 months old, the accused picked her up from home to wash his van. He took her to the farm and to the milk tank shed where he made her lie on a sack on the floor and he raped her. He gave her $20 (ostensibly for car cleaning, but she didn't do any).

[4] In June 2014 when Ruby was 13 but under 16 the accused again picked her up from home to clean his van. He again took her to the farm and this time he made her lie down in the animal feed store where he had full sexual intercourse with her. He gave her $20.

[5] In July 2014 he collected her from home to take her to his home to "clean the window". He made her lie on his bed in his home and again had full sexual intercourse with her. For this he gave her $50.

[6] These incidents were detected on enquiry by her teacher who saw that she had an unusual amount of money with her. The incidents were told to 2 female teachers whom she trusted and her father was told.

[7] At trial the accused denied any contact whatsoever with Ruby.

The Law

[8] The Supreme Court has stated that rape of children will attract sentences between 10 and 16 years. (Anand Abhay Raj, CAV 003.2014).

[9] Sentences for defilement range from a suspended sentence for young persons "in a virtuous relationship" upwards to four years for older persons taking advantage of young girls. (The maximum term is ten years imprisonment).

Mitigation

[10] The accused in this case is 56 years old and a farmer. He has been married for 40 years and there are 4 children of the marriage who have all moved away. He has a clear record. He supports his wife who is bedridden with diabetes and high blood pressure and he himself has heart disease and high blood pressure. His counsel asks for leniency.

[11] The complainant Ruby attests to her post traumatic condition in a victim impact report. She has feelings of anger, embarrassment and lack of self-respect. She has a fear of leaving her home alone.

Analysis

[12] Rape of a child under 13 will receive no mercy from this Court. It is an assault not only on the child's body but also on her quality of life with everlasting effects on her own development to sexual maturity.

[13] Defilement is an offence legislated to provide for girls between 13 and 16 the protection of the law from their own hormonal instincts but particularly from would be predatory men who would take advantage of them.

[14] For the offence of rape I take a starting point of 10 years imprisonment at the lower end of the accepted range of sentences for this offence. To that I add three years for the clear breach of trust in which a friend of the family and her "uncle" had forced himself on the young girl. There was a degree of pre-planning involved in the case in the he had prepared a sacking bed for the rape in the milk shed and he picked her up from home to take her to the farm to purportedly clean his vehicle. For this pre-planning I add a further years' imprisonment. The interim total now stands at 14 years but I deduct one year for his clear record. He will serve a total sentence of 13 years for the rape with a minimum term of 11 years before he is eligible for parole.

[15] For the defilement offence I take a starting point of 2 years imprisonment. For the breach of trust I add a further two years bringing the total to 4 years imprisonment. For the huge age difference I add another year but would deduct a year for his clear record. The total sentence he will serve for each of the two defilement charges is four years imprisonment. These two sentences will be served concurrently with each other and concurrently with the rape sentence.

[16] The total sentence the accused will serve will be a sentence of 13 years for all three offences. He will serve a minimum term of 11 years. The community would not accept a term of any less, considering the gravity of this despicable crime.

P.K. Madigan
Judge

At Suva
1 October 2015