State v Goundar - Sentence [2022] FJHC 485; HAC 343 of 2020S (5 August 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 343 OF 2020S

STATE

vs

RONALD MUNESH GOUNDAR

Counsels : Ms. S. Tivao and Ms. M. Ali for State.
Ms. L. Filipe and Mr. J. Buakula for Accused.
Hearings : 19 and 20 July, 2022.
Judgment : 29 July, 2022.
Sentence : 05 August, 2022.

SENTENCE

1. In a judgment delivered on 29 July 2022, the court found you guilty and convicted you on the following counts in the following information:
   

“Count 1

Statement of Offence

RAPE: Contrary to section 207 (1) and (2) (a) of the Crimes Act 2009.

Particulars of Offence

RONALD MUNESH GOUNDAR between the 11^th day of September, 2020 and the 12^th day of September, 2020 at Nasinu in the Central Division, had carnal knowledge of S.B. without the consent of the said S.B.

Count 2

Statement of Offence

RAPE: Contrary to section 207 (1) and (2) (b) of the Crimes Act 2009.

Particulars of Offence

RONALD MUNESH GOUNDAR between the 11^th day of September, 2020 and the 12^th day of September, 2020 at Nasinu in the Central Division, penetrated the vagina of S.B. with his tongue, without the consent of the said S.B.”

2. The brief facts of the case were as follows. On 11 September 2020 (Friday), the date of the alleged rape, the complainant (PW1) was 15 years old. She was a class 8 student at a local primary school. The accused was 39 years old, at the time. He was a self-employed welder. The complainant and three of her friends went to the accused’s house at Clifton Road, Valelevu. It was late Friday evening. On the way to the house, the accused bought three packets of Chinese whiskey from a nearby shop. The complainant, her three friends and the accused began to drink the whiskey at the accused’s house. They were drinking in a room under the house.
   
3. The complainant said, she drank about 6 to 7 glasses of whiskey. In the early morning of 12 September 2020, the complainant said she was so tired that she fell asleep, on the floor. When she woke up, the complainant said she saw the accused sitting on her lap, and he was taking off her pants. She said, she told him to stop. She said, the accused then slapped her and warned her not to resist or he will kill her. He later pulled down her jeans and panty. The accused then inserted his tongue into the complainant’s vagina, without her consent. Then he inserted his penis into her vagina, without her consent. The complainant told the accused to stop, but he ignored her. The accused, at the time, knew the complainant was not consenting to the above sexual acts, at the time. The accused had been tried and convicted of two rape counts in the High Court, after a two day trial.
   
4. The offence of rape carried a maximum sentence of life imprisonment (see Section 207 (1) of the Crimes Act 2009.). Parliament therefore views the offence as a serious one. It violates the dignity of a person. It is an unwarranted intrusion into the privacy of a person. It is an ultimate act of showing utter disrespect to a person. Therefore those who commit this offence, must expect a lengthy prison sentence to restore the balance, the harmony and atonement to the victim. For the rape of a child, that is, anyone less than 18 years old, the tariff is a sentence between 11 and 20 years imprisonment. I refer to the authority of Gordon Aitcheson v The State, Criminal Petition CAV 012 of 2018, Supreme Court of Fiji. Of course, the final sentence will depend on the mitigating and aggravating factors.
   
5. The aggravating factors in this case was the abuse of children for immoral purpose. The accused was 39 years old, and abused the child complainant’s trust on him, for an immoral purpose. He bought the complainant Chinese whiskey, made her drink the same, then exploited her naivety by raping her. He had no regards whatsoever to the child complainant’s human rights. By offending against the complainant, he caused her family a lot of heartache and misery.
   
6. The mitigating factors were as follows. At the age of 41 years, this was his first sexual offence. He had been remanded in custody for 3 months.
   
7. On count no. 1 (rape), I start with a sentence of 9 years imprisonment. I add 4 years for the aggravating factors, making a total of 13 years imprisonment. I deduct 5 months for time already served, while remanded in custody, leaving a balance of 12 years 7 months. For being a first sex offender at the age of 39 years old, I deduct 1 year 7 months, leaving a balance of 11 years imprisonment. On count no. 1 (rape), I sentence you to 11 years imprisonment.
   
8. On count no. 2 (rape), I repeat the process and sentence in count no. 1.
   
9. The summary of your sentences are as follows:
   • (i) Count No. 1 - Rape : 11 years imprisonment.
   • (ii) Count No. 2 - Rape : 11 years imprisonment.
     
10. Because of the totality principle of sentencing, I direct that the above sentences be made concurrent to each other, making a final total sentence of 11 years imprisonment.
    
11. Mr. Ronald Munesh Goundar, for offending against the complainant as alleged in count no. 1 and 2 of the information, I sentence you to 11 years imprisonment, with a non-parole period of 9 years imprisonment, effective forthwith.
    
12. You have 30 days to appeal to the Court of Appeal.
    

Salesi Temo
JUDGE

Solicitor for State : Office of the Director of Public Prosecution, Suva
Solicitor for Accused : Legal Aid Commission, Suva.