State v Singh [2015] FJHC 963; HAC27.2013 (7 December 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 27 OF 2013

STATE

-v-

AMARJEET SINGH

Counsel : Mr. S. Nath for the State
Mr. J. Lagi for the Accused

Date of Conviction : 30th of November, 2015
Date of Hearing : 04th of December, 2015
Date of Sentence : 07th of December, 2015
(Names of the complainants are suppressed. They are referred to as YK and SK)

SENTENCE

[1] Mr. AMARJEET SINGH (Accused) was found guilty after trial and was convicted by this Court of two counts of Rape contrary to Section 207 (2) (a) of the Crimes Decree No. 44 of 2009, two counts of Attempt to Commit Rape contrary to Section 208 of the Crimes Decree No. 44 of 2009 and one count of Indecent Assault contrary to Section 212 of the Crimes Decree No. 44 of 2009. Mr. Singh now comes before this Court for sentence on conviction.

[2] The facts of the case in brief were that:

Mr. Singh, 30 years of age, was staying at his uncle's house in Sipia from his childhood with the Complainants, YK and SK, who are his cousins. YK was 6 years old and SK was 7 years old at the time of the incident. When Complainant's parents are not at home, he asked YK to bring a condom from her mother's room and called both Complainants to his room, undressed them, undressed himself, wore the condom on his punnu, meaning penis, and asked YK to do sit-ups on his punnu, after removing her panty. YK did sit-ups, but he had to give up his attempt as she was complaining of pain. On the following day, Accused asked her to do the same, this time having applied coconut oil on her pupu, but he failed in his attempt as she refused saying it's painful.

[3] SK did sit-up's on Accused's punnu, meaning penis, on 18th and 19th of January, 2013. Accused's punnu went inside her pupu, the part she urinates. Her experience was painful. She was bleeding. Doctor found her hymen not intact and vaginal opening abnormally soft, evidence suggestive of repetitive penetration.

[4] On the 29th January, 2013, Accused lowered his zip of his trousers, took out his punnu, meaning penis, and rubbed it on YK's legs.

Maximum Sentence

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

Tariff for Rape

[6] It is now well settled, and confirmed by the Supreme Court in Anand Abhay Raj CAV003.2014 that the tariff for rape of a juvenile is 10-16 years' imprisonment.

Starting Point

[7] Rape is a serious crime. By prescribing life imprisonment for Rape offenders, the law makers have manifested their attitude towards the offence and expect Courts to impose harsher punishment on such offenders.

[8] When the rape is committed on a minor in the age range of 6-7 years, by an adult family member of the household, the offending becomes further aggravated. Children need to be protected not only by their immediate family members, but by each and every member of the society in which they live.

[9] Not only the offender himself but also the potential offenders must be deterred. The sentence must send a clear warning to the society. The offender must be severely punished and be incarcerated to ensure that our younger generation is safe and secure. In ethics and law, the aphorism "Let the punishment fit the crime" is a principle that means that the severity of penalty for a misdeed or wrongdoing should be reasonable and proportionate to the severity of the infraction. Proportionality requires that the level of punishment be scaled relative to the severity of the offending behavior.

In State v. AV [2009] FJHC 24; HAC 192 21.02.2009 it was stated that:

"rape is the most serious form of sexual assault.... Society cannot condone any form of sexual assault on children...Sexual offenders must be deterred from committing this kind of offences".

[10] In the case of Mohammed Kasim v. State [1994] FJCA 25;AAU 0021j.93S (27 May 1994) it was stated that;

"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". (emphasis is mine)

[11] In State v Mario Tauvoli [2011] FJHC 216, HAC 027.2011 Hon. Mr. Justice Paul Madigan stated that:

" Rape of children is a very serious offence in deed and it seems to be very prevalent in Fiji at the time. The legislation had dictated harsh penalties and the Courts are imposing those penalties in order to reflect society's abhorrence for such crimes. Our nation's children must be protected and they must be allowed to develop to sexual maturity unmolested. Psychologists tell us that the effect of sexual abuse on children in their later development is profound."

[12] I identify the offence of Rape as the head count and the sentence for Rape will therefore become the foundation in reaching the overall punishment.

[13] Having considered the gravity of the offence, I pick twelve (12) years' imprisonment as the starting point for each Rape count.

Aggravating Circumstances

[14] The Accused is the cousin of the Complainants. The age gap between them is more than twenty years. Broad age gap between the offender and the victim aggravates the background of offending. In principle, the younger the child and the greater the age gap between the offender and the victim, the higher the sentence should be.

[15] Complainant's parents, no doubt, left the house in the belief that daughters were safe and secure in the care of their elderly cousin. He breached that trust and exploited their vulnerability.

[16] The offending took place continuously. Accused used the love and affection his young cousins had towards him to cover up the offending.

[17] There is no victim impact report filed. However, there was evidence that both Complainants suffered pain physically. SK lost her virginity at very young age. Offending left a scar and trauma for the rest of her life.

[18] He allowed young girls to witness heinous crime he was committing.

[19] The Accused has pleaded not guilty to the charge and maintained that position right throughout the trial. By doing so, he has not saved the young girl from giving evidence and reliving the ordeal. He has thereby not shown remorse and repentance.

Mitigating Circumstances

[20] Mr. Singh is 30 years old farmer earning $60.00 per week and supports his de facto partner.

[21] He is first offender and has maintained a clear record.

Sentence for Rape Counts

[22] I add four (4) years to the starting point for above aggravating factors bringing the interim sentence to sixteen (16) years' imprisonment. I deduct 1 year for the above mitigating factors. Now the sentence for each Rape count is 15 years imprisonment.

[23] Accused was in remand for a period of one month before conviction and for two weeks after the Assessors pronounced their opinion. Thus a period of 1 and 1/2 months will be deducted from the sentence. Now the sentence for each Rape count is 14 years 10 months and 15 days.

Sentence for Attempt to Commit Rape Counts

[24] Maximum Penalty for Attempt to Commit Rape is 10 years imprisonment. Tariff for this offence was discussed in many cases. In Aunima v State (2001) FJHC 105; Justice Shameem recommended a tariff for the offence in the range of 12 months to 5 years imprisonment.

[25] I impose a sentence of 3 years' imprisonment for each Attempt to Commit Rape count.

Sentence for Indecent Assault Count

[26] The maximum penalty for Indecent Assault is 5 years imprisonment. Tariff range for Indecent Assault is between 12 months and 4 years imprisonment. (Ratu Penioni Rakota v The State Criminal Appeal No. HAA 0068 of 2002S).

[27] For this assault I impose a sentence of 2 years' imprisonment.

[28] All the prison terms to be served concurrently with the prison term imposed on Rape counts.

[29] Considering Section 18 (1) of the Sentencing and Penalties Decree non parole period of 12 years is imposed.

Summary

[30] Count No.1 (Attempt to Commit Rape) 3 years' imprisonment
Count No.2 (Rape) 14 years 10 months and 15 days' imprisonment
Count No.3 (Attempt to Commit Rape) 3 years' imprisonment
Count No.4 (Rape) 14 years 10 months and 15 days' imprisonment
Count No.5 (Indecent Assault) 2 years' imprisonment

[31] All sentences on Count No.1-5 are to run concurrently. Mr. Amarjeet Singh will serve a minimum of twelve (12) years before being eligible for parole.

[32] 30 days to appeal to 0Court of Appeal.

Aruna Aluthge
Judge

At Lautoka
07th December, 2015

Counsel:
- Office of the Director of Public Prosecution for State
- Legal Aid Commission for Accused