State v Prasad [2022] FJHC 137; HAC 18 of 2018 (24 March 2022)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Case No.: HAC 18 of 2018

STATE

V

NITESH NAVIN PRASAD

Counsel : Mr. T. Tuenuku for the State.

: Ms. A. Bilivalu for the Accused.

Dates of Hearing : 07 and 08 March, 2022
Closing Speeches : 09 March, 2022
Date of Judgment : 11 March, 2022
Date of Sentence : 24 March, 2022

SENTENCE

(The name of the victim is suppressed she will be referred to as “SD”)

1. In a judgment delivered on 11^th March, 2022 this court found the accused guilty and convicted him for two counts of rape as charged.
   
2. The brief facts were as follows:
   
   1. The victim (22 years of age) in the year 2012 was residing at Ellington, Rakiraki with her mother, her step father (the accused) and her younger sister in the one room house of the accused.
      
   2. In the night of 14^th October, 2012, the victim was sleeping sideways on a mattress, the accused came pulled her to face up, quickly removed her jeans and panty together and placed his legs on top of her legs and then pulled her top up. The victim folded her legs to stop the accused, but he continued and pressed her hands with his.
      
   100. Thereafter, the accused forcefully penetrated the victim’s vagina with his erected penis and had sexual intercourse without her consent for 5 minutes. Next day she reported the matter to the police and then went to her sister’s house and told her what the accused had done.
        
   4. On 17^th October, 2012 at about 10.00 am the victim was alone with the accused after her mother had left for the hospital and her younger sister had gone to school. The victim was washing dishes outside the house when the accused came from behind, dragged her to the house and pushed her inside. The victim fell on her back facing up she was wearing a top and skirt.
      
   5. The accused removed her panty first and then her top, the skirt was pulled up when the accused was doing this, he was on top of the victim. The victim was pushing the accused, he pressed her legs with his knees, and then had forceful sexual intercourse by penetrating his penis into her vagina for about 2 minutes. After the accused left, the victim went to her neighbour’s house and told them what had happened.
      
   6. Thereafter, the victim went and reported the matter to the police. The accused was arrested and charged.
3. Both counsel filed written submissions, victim impact statement and mitigation for which this court is grateful.
   
4. The following personal details and mitigation was submitted by the counsel for the accused:
   1. The accused is 39 years old;
   2. Is a first offender;
   100. Is in a defacto relationship with the victim’s mother and they have a 10 year old son;
   4. Is a Carpenter;
   5. Sole bread winner of the family;
   6. Co-operated with the police during investigations;
   7. Promises not to reoffend.
      

5. I accept in accordance with the Supreme Court decision in Anand Abhay Raj –vs.- The State, CAV 0003 of 2014 (20 August, 2014) that the personal circumstances of an accused person has little mitigatory value in cases of sexual nature.

AGGRAVATING FACTORS

6. The following aggravating factors are obvious in this case:

1. Breach of Trust
   

The victim and the accused were in a step daughter and step father relationship and were living under one roof. The accused breached the trust of the victim by his actions. By committing the two offences the accused also broke the sanctity of the relationship that existed between the two.

2. Safety at home
   

The victim was supposed to be safe at home but this was not to be due to the actions of the accused.

100. Victim was vulnerable
     

The victim was vulnerable, helpless, unsuspecting and basically homeless. The accused took advantage of this and sexually abused the victim.

4. Victim Impact Statement
   

In the victim impact statement the victim states that after the incidents she has severed all ties with her mother and sisters. She is also embarrassed and shy about what has happened to her that she cannot face people.

TARIFF

7. The maximum penalty for the offence of rape is life imprisonment and the accepted tariff for the rape of an adult is a sentence between 7 years to 15 years imprisonment.
   
8. In Mohammed Kasim v The State (unreported) Cr. Case No. 14 of 1993; 27 May 1994, the Court of Appeal had stated:

“We consider that at any rape case without aggravating or mitigating features the starting point for sentencing an adult should be a term of imprisonment of seven years. 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 the starting point.”

9. Section 17 of the Sentencing and Penalties Act states:
   

“If an offender is convicted of more than one offence founded on the same facts, or which form a series of offences of the same or a similar character, the court may impose an aggregate sentence of imprisonment in respect of those offences that does not exceed the total effective period of imprisonment that could be imposed if the court had imposed a separate term of imprisonment for each of them.”

10. I am satisfied that the two offences for which the accused stands convicted are offences founded on the same facts and are of similar character. Therefore taking into account section 17 of the Sentencing and Penalties Act I prefer to impose an aggregate sentence of imprisonment for the two offences.
    
11. Bearing in mind the objective seriousness of the offences committed I take 7 years imprisonment (lower range of the scale) as the starting point of the aggregate sentence. The sentence is increased for the aggravating factors, and reduced for mitigation and good character since the accused is a first offender who comes to court as a person of good character. The personal circumstances and family background of the accused has little mitigatory value, however, his good character and other mitigation is a substantive factor.
    
12. I note the accused has been in remand for about 14 days, the sentence is further reduced in accordance with section 24 of the Sentencing and Penalties Act as a period of imprisonment already served.
    
13. Under the aggregate sentencing regime of section 17 of the Sentencing and Penalties Act the final sentence of imprisonment for two counts of rape is 9 years and 6 months imprisonment.
    
14. Having considered section 4 (1) of the Sentencing and Penalties Act and the serious nature of the offences committed on the victim who is the step daughter of the accused compels me to state that the purpose of this sentence is to punish offenders to an extent and in a manner which is just in all the circumstances of the case and to deter offenders and other persons from committing offences of the same or similar nature.
    
15. Under section 18 (1) of the Sentencing and Penalties Act, I impose 8 years as a non-parole period to be served before the accused is eligible for parole. I consider this non-parole period to be appropriate in the rehabilitation of the accused which is just in the circumstances of this case.
    
16. Mr. Prasad you have committed serious offences against the victim your step daughter. She had trusted you and I am sure it will be difficult for her to forget what you had done to her. Your actions towards the victim were disgraceful and selfish. This court will be failing in its duty if a long term deterrent custodial sentence was not imposed. According to the victim impact statement the victim is emotionally and psychologically affected by the incidents.
    
17. I am satisfied that the term of 9 years and 6 months imprisonment does not exceed the total effective period of imprisonment that could be imposed if the court had imposed a separate term of imprisonment for each offence.
    
18. In summary I pass an aggregate sentence of 9 years and 6 months imprisonment for two counts of rape that the accused has been convicted of with a non-parole period of 8 years to be served before he is eligible for parole. Due to the closeness of the relationship between the accused and the victim a permanent non-molestation and non-contact orders are issued to protect the victim under the Domestic Violence Act.
    
19. 30 days to appeal to the Court of Appeal.
    

Sunil Sharma

Judge

At Lautoka
24 March, 2022

Solicitors
Office of the Director of Public Prosecutions for the State.
Office of the Legal Aid Commission for the Accused.