State v Nadan - Sentence [2015] FJHC 740; HAC113.2015 (8 October 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Case No. HAC 113 of 2015

BETWEEN:

STATE

AND:

VISHWA NADAN

Counsel : Mr. A. Datt for the State
Miss. S. Nasedra for the Accused

Date of Judgment : 24th of June 2015
Date of Sentence : 8th of October 2015

SENTENCE

1. You, Mr. Vishwa Nadan stands convicted for three counts of rape contrary to Section 149 and 150 of the Penal Code cap 17, which carries a maximum penalty of life imprisonment.

2. Subsequent to the hearing in the Magistrate's court in Rakiraki, you were found guilty by the learned Magistrate for these three counts of rape and convicted for the same accordingly. The learned Magistrate then transferred this case to the High Court for sentence pursuant to Section 190 (1) (b) of the Criminal Procedure Decree. The particulars of offences for the three counts are that;

1. Count One:-
   

Vishwa Nadan between 1st day of October 2004 and 30 day of November 2004 at Wairuku Rakiraki in the Western Division had unlawfully carnal knowledge of Sonar Amrita Singh without her consent,

2. Count Two:-
   

Vishwa Nadan between 1st day of April 2005 and 31st day of May 2005 at Wairuku Rakiraki in the Western Division had unlawfully carnal knowledge of Sonar Amrita Singh without her consent,

3. Count Three:-
   

Vishwa Nadan between 1st day of August 2006 and 30 day of September 2006 at Wairuku Rakiraki in the Western Division had unlawfully carnal knowledge of Sonar Amrita Singh without her consent,

3. It was proved at the trail in the Magistrate courts that you have committed these crimes on the victim, who is the step-daughter of your brother at your family home. You came to the room of the victim when she was removing her school uniform and had forceful sexual intercourse with her therein. You then threatened the victim that you will chase her family away from the house and kill her if she tells this incident to anyone. Since then you had been continuously having sexual intercourse with the victim whenever you found an opportunity for that. The victim was 13 years old when the first count of rape was committed on her.

4. This is a case of an elderly family member, using a juvenile within the domestic family environment for his surrogate sexual gratification. Crimes in this nature have been condemned and deprecated by many societies as it is not only against the acceptable social norms and values, but also against the acceptable human behaviours.

5. Abusing of children for sexual gratification by elderly family members within the domestic family environment need to address promptly and effectively, not only through the judicial process, but also with effective social intervention to minimise the adverse psychological and physical effect of the victim.

6. Having considered the serious nature of this offence, I now turn my attention to consider the purpose of this sentence. The main purpose of this sentence is founded on the principle of deterrence. It is a responsibility of the court to deter offenders or other persons from committing offences of the same or similar nature and protect the community from offenders of this nature. A harsh and long custodial sentence is inevitable for the offences of this nature in order to demonstrate the gravity of the offence and also reflect that the civilised society denounce such crimes without any reservation.

7. Hon. Chief Justice Gates in Anand Abhay Raj (Special leave to appeal No. CAV003 of 2014) held that the tariff for rape of a child is between 10 -16 years' imprisonment period. Having considered the nature of this offence and the seriousness surrounded with the commission of the offence, I select 12 years as the starting point for each of these three counts of rape.

8. The victim is the step-daughter of your brother and lived with her family at your family house, where you also lived with your family. You abused the trust and confident she has for you as an elderly family member in her own domestic family environment. You started doing this horrific crime on the victim when she was 13 years old. She stated in her evidence that she looked at you as a fatherly figure. However, you, instead of protect her with love and affection, you used her vulnerability in her childhood as a weapon to satisfy your reprehensible lust of sexual gratification. You dined her childhood, and natural growth with the nature by committing this crime. The victim impact report reveals that she had to abandon her school education and was sidelined by many of her relatives subsequent to this incident. You deceitfully plot this crime on the victim by using your position in the domestic environment. While doing such, you have threatened her that you will chase her family out of the house and kill her if she informs this shameful act to anyone, making her helpless against this act. I consider these reasons as aggravating factors of this offence.

9. I now turn onto the mitigation factors. The learned counsel for the accused submitted in her mitigation submission that you are 51 years old. You have five children, two of them are with your wife and two of them live with you as the other one is married. The counsel submitted that the children need your support. However, Hon Chief Justice Gate in Raj v State [2014] FJSC 12; CAV0003.2014 (20 August 2014) held that the accused person's responsibility towards his family has little mitigatory value.

10. You are a first offender, which I consider in favour of you in the sentencing. You have been in remand for three months and 14 days prior to this sentencing.

11. Having considered the aggravating factors as discussed above, I increase three years to reach 15 years of interim imprisonment period. In view of the mitigating factors as discussed above and the time you have spent prior to the sentencing, I reduce 1 year to reach the final sentence of 14 years of imprisonment for the each count of rape.

12. Mr. Vishwa Nadan, I accordingly sentence you;

1. 14 years of imprisonment for the first count,
2. 14 years of imprisonment for the second count,
3. 14 years of imprisonment for the third count,
   

13. All the sentence mentioned above are to be served concurrently. Accordingly you are to be served fourteen years of imprisonment for these three counts as charged. In pursuant of section 18 (1) of the Sentencing and Penalties Decree, you are not eligible for parole for a period of 12 years.

14. The learned counsel for the accused requested the court to refer the accused person for psychiatry assessment. Accordingly he was referred to Dr. Peni Biukoto at the Lautoka Hospital. Dr. Biukoto submitted his finding in his report, stating that the accused has developed some behavioural condition after his judgment, which needs to be further assessed. I accordingly order the Commissioner of Prison to provide the accused necessary medical assistance pursuant to Sections 85 and 86 of the Mental Health Decree 2010.

15. 30 days to appeal to the Fiji Court of Appeal.

R.D. R. Thushara Rajasinghe
Judge

At Lautoka
08th of October 2015.

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