State v Prasad - Sentence [2016] FJHC 718; HAC77.2016 (9 August 2016)

IN THE HIGH COURT OF FIJI
AT SUVA

CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC. 077 of 2016

STATE

v.

1. NAVINDRA PRASAD
2. SHAILENDRA SINGH
3. RAVIND PRASAD
4. AVINESH KUMAR

Counsel: Ms. S. Serukai for State
1^st Accused – In Person
Ms. N. Mishra for 2^nd Accused
Ms. S. Prakash for 3^rd Accused
Ms. N. Mishra for 4^th Accused

Dates of Hearing: 1st, 2^nd and 3^rd August 2016
Date of Summing Up: 4^th August 2016
Date of Judgment: 5^th August 2016
Date of Sentence: 9^th August 2016

SENTENCE

[Name of the victim is suppressed. The victim will be referred to as [‘A.D’]]

1. All four accused persons above stand convicted for Rape after trial. The charges were as follows.

FIRST COUNT

(Representative Count)

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

Particulars of Offence

NAVINDRA PRASAD between the 1^st day of January 2013 and the 30^th of November 2014, at Sawani, Nausori, in the Central Division, had carnal knowledge of ‘A.D.’ without her consent.

SECOND COUNT

(Representative Count)

Statement of Offence

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

Particulars of Offence

SHAILENDRA SINGH between the 1^st day of November 2014 and the 30^th day of November 2014, at Sawani, Nausori, in the Central Division, had carnal knowledge of ‘A.D.’ without her consent.

THIRD COUNT

(Representative Count)

Statement of Offence

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

Particulars of Offence

RAVIND PRASAD between the 1^st day of December 2014 and the 31^st day of December 2014, at Sawani, Nausori, in the Central Division, had carnal knowledge of ‘A.D.’ without her consent.

FOURTH COUNT

(Representative Count)

Statement of Offence

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

Particulars of Offence

AVINESH KUMAR between the 1^st day of December 2014 and the 31^st day of December 2014, at Sawani, Nausori, in the Central Division, had carnal knowledge of ‘A.D.’ without her consent.

2. The brief facts were as follows. The complainant was below 16 years of age in year 2014. As her father was sentenced to jail, she was staying at her uncle Shailendra’s (2^nd accused) house who was her mother’s brother. 1^st accused is her aunt’s husband. 4^th accused is complainant’s cousin and her mother’s 1^st husband’s son. 1^st accused and 3^rd accused are brothers. When the complainant was staying at the 2^nd accused’s house, all accused persons raped the complainant in 2014 on different occasions.
   
3. The complainant had then run away from 2^nd accused’s house to one of her school friends. Although she told her mother several times about what happened to her, her mother had told her not to report to the police as the accused persons would go to jail. Finally the complainant had told her father and on her father’s instructions she had reported the matter to the police.
   
4. Maximum punishment for Rape is imprisonment for life. The tariff for rape of a child under 18 years of age is 10 – 16 years imprisonment. (Raj v. State FJCA AAU 0038.2010 (5 March 2014).
   
5. In this case the complainant was raped by her own connected family members. In Drotini v. State [2006] FJCA 26, the Court of Appeal observed thus;
   

“There are few more serious aggravating circumstances than where the rape is committed on a juvenile girl by a family member or someone who is in a position of special trust. The seriousness of the offence is exaggerated by the fact that family loyalties and emotions all too often enable the offender or other family members to prevent a complaint going outside the family. If the child then remains in the family home, the rapist often has the opportunity to repeat the offence and to hope for the same protection from the rest of the family.”

This observation was reemphasised by the Court of Appeal in Raj v State [2014] FJCA 18.

6. 1^st accused Navindra Prasad;

The aggravating factors are, that the 1^st accused is an uncle of the complainant. He breached the trust reposed on him by the complainant. Complainant was in a destitute situation as her father was in jail and when she had to be looked after by her relatives from her mother’s side. Breach of trust in this case is a special aggravating factor.

7. Accused used his authority and the complainant’s vulnerability to commit the crime. You were 38 years old and the complainant was 15 years old when you committed the offence on her.
   
8. Mitigating factors are, that you were a first offender, and you are the sole breadwinner of the family. Your 68 years old mother stays with you. Your wife had undergone a minor surgery.
   
9. For the 1^st accused Navindra Prasad, I take 13 years as the starting point. I add 3 years for your aggravating factors and deduct 2 years for your mitigating factors. Now your sentence is 14 years imprisonment. You have been in custody from the 2^nd February 2016 to-date. Therefore I deduct 6 months for your period in custody.
   
10. Now your final sentence is 13 years and 6 months imprisonment. Your non-parole period will be 12 years.
    
11. 2^nd accused Shailendra Singh;

You are the uncle (mother’s brother) of the victim and you were also the guardian of the complainant as she was staying with you in your house.

12. You were 41 years old and the victim was 15 years old at the time of the offence. Apart from the above, the aggravating factors will be the same as for the 1^st accused.
    
13. Your mitigating factors are that you have 2 daughters aged 12 years and 11 years. You are the sole breadwinner of the family and your wife has passed away. You are a first offender.
    
14. For you the 2^nd accused, I take 13 years as the starting point. I add 4 years for the aggravating factors and deduct 3 years for the mitigating factors.
    
15. Now your sentence is 14 years imprisonment. You have been in custody since 02/02/2016 till 20/04/2016, for 2 ½ months. I deduct further 3 months for your period in custody and now your sentence is 13 years and 9 months imprisonment. Your non-parole period will be 12 years.
    
16. 3^rd accused Ravind Prasad;

You were 37 years old and the complainant was 15 years old at the time of the offence. Other than this, your aggravating factors are the same as for the 1^st accused as mentioned above.

17. Your mitigating factors are that you are a first offender, you have 2 children and you are the sole breadwinner of the family.
    
18. I take 13 years as the starting point and add 3 years for the aggravating factors. I deduct 2 years for the mitigating factors. Now your sentence is 14 years. You have been in custody for this case for 6 months. I deduct 6 months for your period in custody. Now your final sentence is 13 years and 6 months imprisonment. Your non-parole period will be 12 years.
    
19. 4^th accused Avinesh Kumar;

You are the cousin of the complainant and also the stepbrother. Other than this, the aggravating factors will be the same as for 1^st accused.

20. Your mitigating factors are that you are 23 years old and you are a first offender. Your father has passed away when you were very young. Your age will be taken into consideration.
    
21. I take 12 years as the starting point and add 3 years for the aggravating factors. I deduct 3 years for the mitigating factors. Now your sentence is 12 years imprisonment. I further deduct 6 months for your period in custody for this case. Now your sentence you have to serve is 11 years and 6 months. Your non-parole period will be 10 years.
    
22. Your final sentence is:
    

For 1^st accused – 13 years and 6 months imprisonment with non-parole period of 12 years.

For 2^nd accused – 13 years and 9 months imprisonment with non-parole period of 12 years.

For 3^rd accused – 13 years and 6 months imprisonment with non-parole period of 12 years.

For 4^th accused – 11 years and 6 months imprisonment with non-parole period of 10 years.

Priyantha Fernando

Judge

At Suva
09^th August 2016

Solicitors
Office of the Director of Public Prosecutions for the State.
1^st Accused In Person
Office of Legal Aid Commission for 2^nd, 3^rd and 4^th Accused