State v Reddy [2015] FJHC 925; HAC223 (27 November 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 223 OF 2011

STATE

V

JAGDISH CHAND REDDY

Counsel: Ms. S. Kiran for the State
Mr. J. Singh with Ms. Singh for the Accused

Date of Hearing: 19th November, 2015
Date of Sentence: 27th November, 2015

Sentence

[1]. On the 12thof November, 2015, Mr. Jagdish Chand Reddy (offender)was found guilty after trial and was convicted by this Court of digital Rape. The Accused now comes before this Court for sentence on conviction.

[2]. The facts of the case were that:

Offender comes to the Complainant's house and engages in a conversation with her. During the conversation he introduces himself as 'Brother Jack' a prayer worrier belonging to the New Methodist Denomination and pretends that he could pray for her so she could have children. Complainant agrees in the belief that he can really pray for her to have children. In the false pretense of praying for her, he moves her panty to a side and inserts his three fingers into her vagina without her consent.

[3]. The maximum penalty for Rape is life imprisonment.

[4]. It is now well settled that minimum sentence of seven years must be imposed on a convict in a rape case where the victim is an adult.

The Court of Appeal in Kasim v State [1994] FJCA 25; AAU0021j.93s (27 May 1994) it was held that:

"While it is undoubted that the gravity of rape cases will differ widely depending on all the circumstances, we think the time has come for this Court to give a clear guidance to the Courts in Fiji generally on this matter. We consider that in any rape case without aggravating or mitigating features the starting point for sentencing an adult should be a term of imprisonment of seven years."

[5]. Tariff for Rape is 7-15 years [Kasim(supra)State v. Taniela Karuru (HAC of 32 2010)].

Starting Point

[6]. Their Lordships of the Court of Appeal in Koroivuki v State [2013] FJCA 15; AAU0018.2010 (5 March, 2013), made the following remarks in paragraph 27.

"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 stage. 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."

[7]. It was further stated in Kasim(supra)that:

"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".

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."

[8]. Beliefs in traditional witchcraft, spiritual therapies are still imbedded in Fijian way of life. Courts must not allow sex perverts to exploit innocent unsuspecting people especially women who seek solace in such beliefs. Potential wrong doers must be discouraged and the sentence must reflect public abhorrence of such crimes.

[9]. The Court must take sufficiently into account the aspect of general deterrence and the sentence imposed must reflect the overall criminality of the Appellant's conduct. Clearly, the legislature views digital penetration of a woman without her consent as being very serious. Some years ago, an offence of this kind was characterized as an indecent assault. The legislature has seen fit to make what was once indecent assault the serious offence of Rape which carries a maximum sentence of life imprisonment.

[10]. Having considered the gravity of the offence, I pick a starting point of eight years imprisonment in the lower range of the tariff band.

Mitigating Factors

[11]. Mr. Reddy is the first offender and has maintained clear records hitherto.

[12]. He has cooperated with Police during investigations.

[13]. He is young(37 years old)divorcee and a father of two children earning $120.00 per week as a farmer and broom maker.

[14]. There was no violent penetration and no signs of immediate distress to the Complainant.

[15]. After a motor accident, offender is suffering from permanent visual and hearing disabilities.

Aggravating Factors

[16]. Offender took advantage of naivety and vulnerability of the complainant when she was alone at her home.

[17]. Offender disguised himself as a brother of the church and used the religion to fraudulently mislead an unsuspecting woman.

Sentence

[18]. Having considered all the aspects, now I proceed to sentence the Accused as follows;

[19]. To starting point of 08 years, I add two years for all mitigating circumstances bringing the interim sentence to ten years. In recognition of strong mitigation, I deduct three years bringing the final sentence to seven years imprisonment.

[20]. Having considered the Accused's future prospects and desire for rehabilitation, I order that Accused serve only five years before he is eligible for parole.

Summary

[21]. Accused is convicted for seven years imprisonment. He will serve a minimum of five (5) years before being eligible for parole.

[22]. 30 days to appeal to the Court of Appeal

Aruna Aluthge
Judge

At Lautoka
27th November, 2015

Counsel:

- Office of the Director of Public Prosecution for State
- Samusamuvodre & Sharma Law for the Accused