State v M. N - Sentence [2015] FJHC 916; HAC216 of 2011 (24 November 2015)

IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA

CRIMINAL CASE: HAC 216 OF 2011

BETWEEN:

STATE

AND:

M N

Counsel : Ms. R. Uce for State
Accused is in person

Date of Hearing : 17th and 18th of November 2015
Date of Closing Submissions : 18th of November 2015
Date of Summing Up : 20th of November 2015
Date of Judgment : 20th of November 2015
Date of Sentence : 24th of November 2015

SENTENCE

1. You, stand convicted for one count of Rape contrary to Section 207(1) and 207(2)(a) of the Crimes Decree, which carries a maximum penalty of life imprisonment and one count of Indecent Assault contrary to Section 212(1) of the Crimes Decree, which carries a maximum penalty of five years of imprisonment.
   
2. Subsequent to the hearing of these charges and the unanimous guilty verdict of the three assessors, the court found you guilty for these two counts and convicted for the same accordingly.
   
3. It was proved at the conclusion of the hearing that you came to the victim, while she was sleeping in the room in the night and penetrated into her vagina with your penis. She was ten years old at that time. In respect of the second count, it was proved that you licked her vagina while she was sleeping at the guest room of the Bamboo backpackers hotel on the 5th of June 2011. You are related to the victim from her mother's side and she called you as uncle. You had been residing with the victim and her family during this period because of your work commitment.
   
4. This is a case of a child rape by a known and closed person in the domestic environment. Such crimes certainly cause multitude of physiological trauma in the life of the child victim. The child will definitely lose the trust and confident not only in herself, but also in her family and domestic environment.
   
5. The frequent occurrence of such crimes, indeed endangers the function and the progress of the society with healthy and confident population. Hence, it is the responsibility of the court to deter the offenders of this nature or other persons from committing crimes of this nature. Accordingly, this sentence is founded on the principle of deterrence.
   
6. 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.
   
7. The tariff for the offence of Indecent Assault is from one year to four years imprisonment. (Rokota v The State (2002) FJHC168; HAA0068J.2002S (23 August 2002), State v Simione Talenasila (Criminal Case No HAC 11 0f 2010L (12 March 2012), State v Gonedau (2013) FJHC 84; HAC14.2012 (5 March 2013).
   
8. Having considered the nature of this offence and the seriousness surrounded with the commission of the offence, I select 11 years as the starting point for count of rape and 3 years for the count of Indecent Assault.
   

9. Though you are distantly related to the victim, you held a position of trust. The victim considered you as an uncle. You breached that trust and confident the victim had reposed in you. You manipulatively used the vulnerability of her childhood to satisfy your reprehensible lust of sexual gratification. In doing that, you denied her childhood and natural growth with nature. The Victim Impact Report tendered by the prosecution states that the victim is having adverse emotional and psychological effects due to this incident. I consider these reasons as aggravating factors of this offence.

10. I now turn to consider mitigating factors for you. You have no previous convictions. You are 45 years old. You are married with two children. Both of them are attending school and need your support. However, I do not find that your family commitment towards your family would attract any significant mitigatory value in the sentencing.

11. Having considered the above mentioned aggravating factors, I increase 2 years to reach 13 years of interim imprisonment period for the offence of rape and 5 years of interim imprisonment for the offence of Indecent Assault. In considering the mitigating factors which I discussed above, I reduce 1 year to reach the final sentence of 12 years for the offence of rape and 4 years for the offence of Indecent Assault.

12. Accordingly, I sentence you twelve (12) years of imprisonment period for the offence of rape contrary to section 207(1) and 207 (2) (a) of the Crimes Decree and four (4) years of imprisonment period for the offence of Indecent Assault contrary to Section 212(1) of the Crimes Decree.

13. Both the sentences to be served concurrently. In pursuant of section 18 (1) of the Sentencing and Penalties Decree, you are not eligible for parole for a period of 9 years.

14. 30 days to appeal to Court of Appeal.

R. D. R. Thushara Rajasinghe
Judge

At Lautoka
24th of November 2015

Solicitors : Office of the Director of Public Prosecutions