State v Chandra - Sentence [2015] FJHC 808; HAC032.2014 (16 October 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 032 OF 2014

STATE

Vs

RAKESH CHANDRA

Counsels : Ms Madanavosa P for the State

Mr Singh R for the Accused

Dates of Trial : 5/10; 6/10; 7/10; 8/10; & 9/10/2015

Summing Up : 12 October 2015

Judgment : 13 October 2015

Sentence : 16 October 2015

SENTENCE

[1] Mr. Rakesh Chandra, after being convicted on two counts of Rape, contrary to Section 207(1),(2)(a) and (b) 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 charge. The ensuing trial lasted for three days in this Court; during which, the complainant and a medical witness gave evidence for Prosecution, while you 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.

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

(i) Having invited for dinner, you took the complainant in your car;

(ii) You have then taken her to two night clubs. Later in the night you have taken her into a dead end of a road. You have parked your car in a bush. You have threatened the complainant with death and also of assault with clenched fist;

(iii) Thereafter, you have forcibly inserted your finger into her vagina. You also have had vaginal intercourse with her forcibly. You continued with your act, ignoring her pleas.

[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 Hon. Mr. Justice A.H.C.T. Gates (as he was then) in State v 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, and in the light of the above guiding principles, I commence your sentence at 8 years and 6 months of imprisonment each for the two counts of Rape.

[10] The aggravating factors are:

(i) Breach of trust the victim had towards you;

(ii) Significant degree of opportunistic planning;

(iii) Taking advantage of the victim's vulnerability;

(iv) Display of total disregard to the victim's wellbeing.

[11] I add 2 years 6 months for each count on the above aggravating factors. Now your sentence is 11 years.

[12] The mitigating factors are:

(i) You are a first offender;
(ii) You are a 33 year old taxi driver;
(iii) You are married and supports your wife and child;
(iv) No significant injury on victim;
(v) No weapon was used on the victim;
(vi) You co-operated with the Police investigations.

[13] I deduct 3 years for the above mitigating factors. Now the sentence is 8 years.

[14] You were in remand for this case for almost a month.

[15] I deduct your month long remand period from the sentence and now the sentence is 7 years and 11 months for each count.

[16] In applying totality principle to your sentence, I direct that both these sentences to run concurrently.

[17] Considering Section 18 (1) of the Sentencing and Penalties Decree, I impose 6 years of non-parole period in view of the unreported judgement of Court of Appeal in Paula Tora v The State Crim App. No. AAU 0063/2011.

[18] Your final sentence is as follows:

(i) For each count of Rape – 7 years and 11 months of imprisonment, to run concurrently.

Summary

[19] You are sentenced to 7 years and 11 months of imprisonment. You will not be eligible for parole until you complete serving 6 years of imprisonment.

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

ACHALA WENGAPPULI
JUDGE

At Suva
16 October 2015

Solicitors for the State : Office of the Director of Public Prosecution, Suva.

Solicitor for the Accused : Kohli & Singh Barristers and Solicitors, Suva.