State v Kumar - Sentence [2015] FJHC 860; HAC077.2013LAB (30 October 2015)

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Hearings : 27 and 28 October, 2015
Summing Up : 29 October, 2015
Judgment : 29 October, 2015
Sentence : 30 October, 2015

1. In a judgment delivered yesterday, the court found you guilty and convicted you on the following counts in the following information:

RAPE: Contrary to section 207 (1) and (2) (c) of the Crimes Decree No: 44 of 2009.

BHUPENDRA KUMAR on the 3rd day of August 2013 at Dreketi, Macuata in the Northern Division penetrated the mouth of A.N. a 12 year old boy with his penis.

RAPE: Contrary to section 207 (1) and (2) (c) of the Crimes Decree No: 44 of 2009.

BHUPENDRA KUMAR on the 5th day of September 2013 at Basoga, Labasa in the Northern Division penetrated the mouth of A.N. a 12 year old boy with his penis.

INDECENTLY INSULTING OR ANNOYING ANY PERSON: Contrary to section 213 (1) (a) of the Crimes Decree No: 44 of 2009.

BHUPENDRA KUMAR on the 29th day of September 2013 at Dreketi, Macuata in the Northern Division intended to insult the modesty of A.N. by showing and asking the said A.N. to suck his penis an act not liked by the said A.N.

RAPE: Contrary to section 207 (1) and (2) (c) of the Crimes Decree No: 44 of 2009.

BHUPENDRA KUMAR on the 5th day of October 2013 at Dreketi, Macuata in the Northern Division penetrated the mouth of A.N. a 12 year old boy with his penis.

2. The brief facts were as follows. Between 3 August 2013 and 5 October 2013, you were aged 44 years 4 months. The complainant was aged 11 years 10 months old. You are related to the complainant through your wife. The complainant lived with his parents. You lived with your wife and 3 children. On 3 August 2013, while the complainant was sleeping in your house, you inserted your penis into his mouth (count no. 1). On 5 September 2013, at your mother-in-law's house at Basoga, Labasa, you again inserted your penis into the complainant's mouth (count no. 2).

3. On 20 September 2013, you took the complainant to your house. In the house, you closed all the windows and doors. You took off your clothes and told the complainant to suck your penis. He refused and was insulted (count no. 3). On 5 October 2013 while walking to your house with the complainant, you forced him to suck your penis in the bush (count no. 4).

4. In State v Katokaiti Tutara, Criminal Case No. HAC 050 of 2014LAB. High Court, Labasa, I said the following, "..."Rape" as a sexual offence, is at the top of the criminal calendar, as far as sexual offences were concerned. It involved an attack on a person's dignity. It is also an attack on a person's right to privacy. It intrudes into a person's right to enjoy a quality life. Those who find themselves on the wrong side of the law must not expect leniency. The law makers of this country had prescribed a maximum sentence of life imprisonment for those found guilty of rape (see section 207 (1) of the Crimes Decree 2009). The Honourable Chief Justice via the Supreme Court case of Anand Abay Raj vs The State, Criminal Appeal Case No. CAV 0003 of 2014, had set the tariff for the rape of juveniles a sentence between 10 to 16 years imprisonment. The actual sentence will depend on the mitigating and aggravating factors".

5. "Indecently insulting or annoying a person," contrary to section 231 (1) (a) of the Crimes Decree 2009 carries a maximum sentence of 1 year imprisonment.

(i) Breach of Trust. You are related to the complainant through your wife. You are 44 years old, while the complainant was 11 years 10 months old. Your family and the complainant's family were on good terms with each other. You lived close to each other. Because of your age differences, you stand in a position of trust to the complainant. You were supposed to care for him and see he is not harmed. However, you did the unthinkable. You exploited the complainant's trust and raped him on three separate occasions;

(ii) Rape of a child. As I had said before, this offence is becoming prevalent in our community. Time and time again, the court had issued warnings and deterrent sentences against those who abuse children. A deterrent sentence will be given to you to re-inforce the court's hard stand on the offence.

(iii) By offending against the complainant, you showed no regard to his right to privacy, his dignity and his right to a quality life. You should not complain when you lose your liberty to atone for your crimes.

8. On count no. 1, I start with a sentence of 11 years imprisonment. I add 3 years for the aggravating factors, making a total of 14 years imprisonment. I deduct 2 years for being a first offender, leaving a balance of 12 years imprisonment. I deduction another 1 year for his time in custody, leaving a balance of 11 years imprisonment. On count no. 1, I sentence you to 11 years imprisonment.

(i)	Count No. 1	- Rape	- 11 years imprisonment
(ii)	Count No. 2	- Rape	- 11 years imprisonment
(iii)	Count No. 3	- Indecent Insult	- 6 months imprisonment
(iv)	Count No. 4	- Rape	- 11 years imprisonment

12. Because of the principle of totality of sentencing, I direct that all the above sentence be made concurrent to each other, that is, a total sentence of 11 years imprisonment.

13. Mr. Bhupendra Kumar, for raping and indecently insulting the complainant in 2013, at Labasa in the Northern Division, I sentence you to 11 years imprisonment, with a non-parole period of 10 years imprisonment, effective forthwith.

14. The name of the complainant is permanently suppressed to protect his privacy.

Solicitor for the State : Office of the Director of Public Prosecution, Labasa

High Court of Fiji

State v Kumar - Sentence [2015] FJHC 860; HAC077.2013LAB (30 October 2015)