State v MK - Sentence [2015] FJHC 791; HAC157.2012 (22 October 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 157 OF 2012

STATE

V

M.K.

Counsel : Mr. R. Kumar for the State
Mr. M.Razafor the Accused

Dates of Trial : 12th, 13th, 14th, 15th and 16th October 2015
Summing Up : 19th October 2015
Judgment : 20th October 2015
Sentence : 22nd October 2015

SENTENCE

[1] Mr. M.K., after being convicted to two charges of Rape, contrary to Section 207(1)(2)(a) of the Crimes Decree No. 44 of 2009, you are now brought before this Court for imposition of your sentence.

[2] You pleaded not guilty to above charges. The ensuing trial lasted for five days before this Court; during which, the complainant and her mother gave evidence for Prosecution, while you, your son and another offered evidence for the Defence.

[3] At the conclusion of trial; having reviewed the evidence and its summing up to assessors, this Court decided to accept their unanimous opinion and found you guilty and convicted you of the said two charges of rape.

[4] The following facts were proved during the trial:

(i) The complainant is your daughter in law and came to reside in your house after her marriage to your son in August 2010.

(ii) On 10th October 2010, after an attempt of suicide by the complainant, you have taken her to her mother's house. In the presence of her mother you have massaged her legs, arms, stomach and back. Thereafter only you took her to receive medical treatment.

(iii) In the morning of 18th October 2010, you have taken your wife for a medical check-up and had returned home. Only the complainant was at home that time attending to house chores. You told her that she needed a massage. She refused. You had then took her to your room, removed her undergarment, held her both hands up while closing her mouth with the other. You had then penetrated her vagina with your penis forcibly.

(iv) On 28th October 2010, you left for work in the morning and called your wife to your workplace to assist you. She has then left the house to join you. You returned home after about an hour alone. Then you had taken your wife's father to a neighbour' house. Only the complainant remained in the house. You came back to the house, closed the main door, had a bath and came to the complainant's room where she was using her computer. You closed the door and drew curtains. You prevented the complainant from leaving the room and said you wanted to massage her. She refused. You pushed her to the edge of the bed, kissed her on lips, put her on bed, removed her undergarment and inserted your penis into her vagina.

(v) At a later point of time, when the complainant had made the accusation in the prayer room of your house under oath, you also denied the allegation under oath. Your wife had then told the complainant that she do not want to see her on that property. Your son had then taken her back to her parents.

(vi) Your son, on the pretext of giving a "2nd chance" to revive their marriage, offered to live with her for 9 months after the initial separation after her accusation of rape. He lived with her until she realised that the purpose of "2nd chance" is to pressurise her in withdrawing her complaint of rape against the accused.

[5] According to Section 207(1) of the Crimes Decree No. 44 of 2009, the maximum punishment for rape is imprisonment for life. It is a serious offence.

[6] The tariff for rape of an adult is well settled since the Judgment of Justice Gates (as he was then) in Statev Marawa [2004] FJHC 338. The starting point of imprisonment for rape of an adult is 7 years. The tariff is between 7 years to 15 years.

[7] In Mohamed Kasim v The State(unreported) Fiji Court of Appeal Cr. Case No. 14 of 1993; of 27 May 1994, the Court of Appeal observed thus:

"We consider that at 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."

[8] In determining the starting point within the said tariff, Suresh Chandra J, in Laisiasa Koroivuki v State(Criminal Appeal AAU 0018 of 2010) has formulated the following guiding principles;

"In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this time. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff. If the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range".

[9] Considering the nature of offending, in the light of the above guiding principles, I commence your sentence at 9 years of imprisonment for each charge of Rape.

[10] The aggravating factors are:

(i) Breach of trust the victim had towards you as her father in law;

(ii) The age gap between the two of you;

(iii) Significant degree of planning;

(iv) You have taken advantage of the victim's vulnerability as she was recovering after an act of attempted suicide;

(vii) You displayed total disregard to the victim's wellbeing;

(viii) The complainant was "traumatised" by you and was "disgusted" with your repeated wrongful conduct;

(ix) No remorseful conduct by you;

(x) Your act resulted in permanent break down of her marriage,

(xi) Committing a domestic violence offence.

[11] I add 5 years for the above aggravating factors. Now your sentence is 14 years.

[12] The mitigating factors are:

(i) You are a first offender as conceded by the State;

(ii) You are a 45 year old taxi driver;

(iii) You support your sickly wife and her 87 year old father;

(iv) Your previous good character;

(v) No injury on victim;

(vi) No weapon was used on the victim;

(vii) You co-operated with the Police.

[13] I deduct 2 years for the above mitigating factors. Now the sentence is 12 years.

[14] You were in remand for this case for only one day.

[15] I order the two 12 year sentences of imprisonment to run concurrently.

[16] Considering Section 18 (1) of the Sentencing and Penalties Decree, and the unreported judgment of the Court of Appeal in Tora v The State Crim. App. AAU 0063/2011, I impose a 10 years non- parole period on the sentences

[17] Your sentences areas follows:

(i) 1st Count of Rape - 12 years of imprisonment
(ii) 2nd Count of Rape - 12 years of imprisonment,

Both these sentences are to run concurrently

Summary

[18] You are sentenced to 12 years imprisonment. You will not be eligible for parole until you complete serving10years of imprisonment.

[19] A permanent Domestic Violence restraining order will be in place identifying the victim S.P. as the protected person.

[20] You have 30 days to appeal to the Court of Appeal.

ACHALA WENGAPPULI
JUDGE

At Suva
22ndOctober 2015

Solicitors for the State : Office of the Director of Public Prosecution, Suva.
Solicitor for the Accused : MeboobRaza& Associates