State v Hussain - Sentence [2022] FJHC 11; HAC187.2020 (5 January 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 187 of 2020

STATE

vs.

MOHAMMED FARIYAZ HUSSAIN

Counsel: Ms. S. Shameem for the State
Mr. J. Reddy with Ms. K. Dugan for Accused

Date of Hearing: 06^th to 09^th December 2021
Date of Closing Submission: 10^th December 2021
Date of Judgment: 21^st December 2021
Date of Sentence 05^th January 2022

SENTENCE

1. Mr Mohammed Fariyaz Hussain, you stand convicted for one count of Sexual Assault, contrary to Section 210 (1) (a) of the Crimes Act which carries a maximum sentence of ten years imprisonment, one count of Rape, contrary to Section 207 (1) and (2) (b) of the Crimes Act, which carries a maximum sentence of life imprisonment and one count of Rape, contrary to Section 207 (1) and (2) (a) of the Crimes Act, which carries a maximum sentence of life imprisonment.
2. It was proved during the hearing that you had forcefully pushed the Complainant to the bedroom and then forcefully removed her clothes. You had then indecently and unlawfully sucked her breasts. After that, you had penetrated her vagina with your fingers without her consent. You then penetrated her vagina with your penis without her consent.
style='text-indent:0ptt:0pt; margin-top:0pt; margin-bottom:0pt;' value='3' value="3">This is a case of sexual exploitation of a young adolescent by a known perithin her own domestic environment. Sexual exploitation of n of children within their own domestic environment has become a social menace. Therefore, I find this offending is a severe crime. <
4. In view of the severe nature of the crimes of this nature, the primary purpose of this sentence is fouon the principle of deterreterrence. It is the responsibility of the Court to deter offenders or other persons from committing offences of the same or similar nature and protect the community from offenders of this nature. A harsh and long custodial sentence is inevitable for offences of this nature to demonstrate the gravity of the offence and reflect that civilised society denounces such crimes without any reservation.
5. The two counts of Rape and one count of sexual assault are founded on the same series of offending. Therefore, I find it is appropriate to impose an aggregate sentence pursuant to Section 17 of the Sentencing and Penalties Act.
6. Gates CJ in Aitcheson v S/u> ( [2018] FJSC 29; CAV0012.2018 (2 November 2018) held that the tariff he Rape Rape of a child is between 11 - 20 years' imprisonmeriod.
7. Justice Madigan in v Epeli Ratabacaca Laca - ca - Sentence [2012] FJHC 1414; HAC252.2011 (14 November 2012) has expounded the tariff for the offence of Sexual Assault as between 2 years to 8 years’ imprisonment.
   
   8. Rape is a physical invasion committed on the victim under a coercive circumstance. Therefore, the degree of invasion of the victim's bodily integrity and sexual autonomy is an indispensable factor in determining the gravity and impact of the crime on the victim. The degree of invasion should be ascertained based on the level of harm and culpability.
9. The victim impact report states that this crime has adversely affected the Complainant emotionally and psychologically. According to the Victim Impact Report, this crime has shattered her self-confidence. Therefore, I find that the level of harm in this offence is significantly high.
10. You had meticulously executed this crime when you found that she was alone at the flat. She was not in a position to escape or seek assistance from others. You had used a certain amount of physical violence in committing this offence. You had told her that you did this crime because she would not be able to marry anyone now. I accordingly find that the level of culpability is significantly high in this crime.
11. The Complainant is your step-sister. She had treated you like her brother. You had abused that trust and confidence she had in you as her brother. I consider these reasons as aggravating factors of this offence.
The learned Counsel for the Defence, in his mitigation submissions, submitted your personal and family backg, which has no mitigatory vory value.
13. You are a first young offender; hence, you are entitled to a substantive discount.
14. In view of the reasons discussed above, I sentence you to a period of thirteen (13) years imprisonment as an aggregated sentence for the two counts of Rape and one Count of Sexual Assault.
15. Having considered the seriousness of this crime, theose of this sentence, and opportunities for rehabilitation, I find nine (09) years of non-pnon-parole period would serve the purpose of this sentence. Hence, you are not eligible for parole for nine (09) years pursuant to Section 18 (1) of the Sentencing and Penalties Act.

Head Sentence

16. Accordingly, I sentence you to a period of thirteen (13) years imprisonment as an aggregate sentence for the two counts of Rape and one count of Sexual Assault as charged in the information. Moreover, you are not entitled to parole for nine (09) years pursuant to Section 18 (1) of the Sentencing and Penalties Act. .

Actual PerioPeriod of the Sentence

17. You have in remand custody for this case for nearly one (1) month beth before the sentence as the Court did not grant you bail. In pursuant to Section 24 of the Sentencing and Penalties Act, I consider one (1) month as a period of imprisonment that you have already served.
18. Accordingly, the actual sentencing period is twelve (12)s and eleven even (11) months imprisonment with a non-parole period of eight (08) years aeven (ven (11) months.
style='text-indent:0ptt:0pt; margin-top:0pt; margin-bottom:0pt;' value='19' value="19">Sinis incident involves domestic violence, I am satisfied that there are sufficient grounds tods to consider making an order under the Domestic Violence Act. I accordingly make a permanent Domestic Violence Restraining Order against you with standard non-molestation conditions and no contact conditions pursuant to Section 24 and 28 of the Domestic Violence Act. The above Domestic Violence Restraining Order will be in force until this Court or any other competent Court is varied or suspended it. Furthermore, if you breached this restraining order, you will be charged and prosecuted for an offence pursuant to section 77 of the Domestic Violence Act.

20. Thirty (30) days to appeal to the Fiji Court of Appeal
    

..................................................

Hon. Mr. Justice R.D.R.T. Rajasinghe

At Suva

05^th January, 2022

Solicitors

Office of the Director of Public Prosecutions for the State.

Jiten Reddy Lawyers for the Accused.