State v Singh - Sentence [2022] FJHC 547; HAC74.2020 (30 August 2022)

IN THE HIGH COURT OF FIJI

AT SUVA

CRIMINAL JURISDICTION
Crim. Case No: HAC 74 of 2020

THE STATE

vs.

DANIEL SINGH

Counsel : Ms. U.M.Tamanikaiyaroi with Mr. L. Baleilevuka for State

Ms. D. Kumar for Offender
Date of Judgment : 23 August 2022
Date of Sentencing Hearing : 29 August 2022
Date of Sentence : 30 August 2022

(Name of the Complainant is suppressed. She is referred to as NB)

SENTENCE

1. MR. DANIEL SINGH, you stand convicted after trial of two counts of Rape and one count of Sexual Assault. The relevant parts of the information read as follows:

Count 1

Statement of offence

Rape: Contrary to Section 207 (1) and (2) (a) and (3) of the Crimes Act 2009.

Particulars of Offence

DANIEL SINGH sometime between the 1st day of January 2016 and the 31st day of December 2016 at Suva, in the Central Division, had carnal knowledge of NB, a child under the age of 13 year.

Count 2

Statement of Offence

SEXUAL ASSAULT: Contrary to Section 210 (1) (a) of the Crimes Act 2009.

Particulars of Offence

DANIEL SINGH sometimes between the 1st day of January 2016 and the 31st day of December 2016 at Suva, in the Central Division, unlawfully and indecently assaulted NB, by touching her breasts with his hands.

Count 3

Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) and (3) of the Crimes Act 2009

Particulars of Offence

DANIEL SINGH sometime between the 1st day of January 2017 and the 31st day of December 2017 at Suva, in the Central Division, penetrated the mouth of NB, a child under the age of 13 years, with his penis.

2. Having been convicted on the above counts, you come before this Court for sentence.
3. Your victim is a child and was under 13 years of age at the time of the offences. She is related to you. The victim’s mother was babysitting at your house during the period between 2016 and 2018. The victim occasionally accompanied her mother to your house during school holidays. You treated her as your own daughter and your wife assisted her in her education. She was happy in your company and she trusted you very much.
   
4. During school holidays in 2016, the victim was staying at your house. At one night, your wife told the victim to tidy your bedroom. When the victim was in the bedroom, you entered the bedroom and threatened her. You forced her by holding her hand and putting your hand on her mouth. She started shouting but no one could hear her. You took off her clothes and started touching her body. You fondled her breast in a bad way. You inserted your penis into her vagina and had sexual intercourse for about 10 minutes. Then you took out your penis, wiped the ‘white things’ and asked her to leave the room. When she indicated to you that she is going to tell her mother, you threatened to kill her if she told her mother or anyone. She was not feeling comfortable and could not walk properly. She got sick after this incident.
   
5. In 2017, when she went to the sitting room to clean it up, you approached her and tied up her hands and put your penis on her mouth for 5 minutes. She was shouting but no one could hear her. She didn’t tell her mother about what you did because you threatened to kill her.
   
6. In 2018, the victim was in a distressed condition at school. She told one of her friends about what you had done to her from 2016 until 2018. The matter was reported to the teacher and to police by the school.
   
7. The maximum penalty for Rape is life imprisonment. The sentencing tariff for rape of a child ranges from 11 to 20 years’ imprisonment (Aitcheson v State [2018] FJSC 29; CAV0012.2018 (2 November 2018). The maximum sentence for Sexual Assault is 10 years’ imprisonment and the tariff ranges from 2 years to 8 year’s imprisonment [State v Laca [2012] FJHC 252.2011 (14 November 2012).
   
8. In the sentencing process, I must have regard to the proportionality principle enshrined in the Constitution, the Sentencing and Penalties Act 2009 (SPA), the current sentencing practice and the applicable guidelines issued by the courts. I will select an appropriate starting point, having regard to the seriousness of the offence and the impact or harm caused to the victim. Then I will adjust your sentence having regard to the aggravating and mitigating factors to arrive your final sentence.
   
9. The maximum sentence prescribed by the Parliament indicates that the offence of Rape is a serious offence. When it is committed on a child, the seriousness is at its height. The United Nations Convention on Rights of the Child (to which Fiji is a party) and our own Constitution require the courts to protect the children who are vulnerable members of our society. The children are entitled to live their lives free from any form of physical or emotional abuse. Psychologists opine that the effect of sexual abuse on their later development is profound.
   
10. The Courts in Fiji have emphasised that the increasing prevalence of this offence in the community calls for deterrent sentences and have dealt the offenders with harsher punishments. The duty of this Court is to see that the sentences are such as to operate as a powerful deterrent factor to prevent the commission of such offences. The rapists must receive condign punishment to mark the society’s outrage and denunciation against sexual abuse of children. The combination of those purposes form the basis of your punishment.
    
11. First rape and sexual assault took place in a single transaction based on the same facts. Rapes and Sexual Assault form a series of offences of similar character. According to Section 17 of the Sentencing and Penalties Act 2009, 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 has a discretion to impose an aggregate sentence of imprisonment in respect of those offences. This is a fit case to impose an aggregate sentence under Section 17 of the Sentencing and Penalties Act for all the offences.
    
12. Having taken into consideration the seriousness of the offence and the harm caused to the victim, I select a starting point of 11 years from the lower range of the tariff as the first step in the sentencing process.
    
13. In the light of the Supreme Court decision in Ram v State [2015] FJSC 26; CAV12.2015 (23 October 2015), and the helpful submissions of the Counsel, I have identified the following aggravating and mitigation factors:
    

Aggravating factors:

(i) There was a gross abuse and breach of trust in this case. The victim grew up without a father and was highly vulnerable. She enjoyed the company of your family and found your house to be safe and secure. Your wife financially supported her education. You treated her as your own daughter and earned her trust and confidence. You betrayed that trust and confidence.
(ii) The sexual abuse took place over a considerable period of time.

(iii). You instilled fear in her by threatening her not to tell what you did to anyone.

(iv). The complainant was vulnerable by virtue of her age and dependency. You exploited her vulnerability.

(v). There is a huge age disparity between you and the victim.

(vi). There was a degree of pre-planning in your offences. You ensured that the offences take place at times when the other family members and her mother are not alerted.

(vii). You exposed the innocent mind of a child to sexual activity at a young age.

(viii). The complainant in her Victim Impact Statement has described how her life has been affected due to the sexual abuse. The offences have caused a considerable psychological impact on the victim and that impact is traumatic and continuing.

Mitigating Factors:

(i). You are 35 years of age, married with one child. You are employed as a carpenter on contractual basis and you earn $100-$120 a week. You are the sole breadwinner of the family. Generally, the personal circumstances have very little mitigatory value- Raj v The State [2014] FJSC 12 CAV0003.2014 (20^th August 2014).

(ii). You do not have any previous convictions. You have maintained a clear record over the past 35 years of your life. However, your clear record is of little value in this case because you committed this crime in breach of trust. Senilolokula v State [2018] FJSC 5; CAV0017.2017 (26 April 2018).

14. Your Counsel has submitted that you are deeply remorseful. I am unable to agree with that submission. You have not shown any remorse by your conduct after the offences or during the course of the trial. You allowed the victim to relive her ordeal in court and tried to cover up your wrong by advancing unfounded allegations.
15. I add 4 years to the starting point of 11 years for above mentioned list of aggravating factors and reduce 11 months for mitigating factors to arrive at a sentence of 14 years and one months’ imprisonment.
    
16. You have been in remand for approximately one month since your arrest. Exercising my discretion under Section 24 of the Sentencing and Penalties Act, I reduce the time spent in remand from your sentence to arrive at a final aggregate sentence of 14 years’ imprisonment for all three offences.
    
17. You are young and a first offender. In view of your age, potential for rehabilitation and the societal interests, a non- parole period of 11 years is fitting in this case so that you are eligible for parole after serving 11 years in the correction facility.
    

18. Summary.

Mr. Daniel Singh, you are sentenced to an imprisonment term of 14 years with a non-parole period of 11 years. A permanent Domestic Violence Restraining Order is issued to protect the victim.

19. You have 30 days to appeal to the Fiji Court of Appeal.
    

Aruna Aluthge
Judge

30 August 2022

At Suva

Counsel:

- Office of the Director of Public Prosecution for State

- Dharmendra Kumar Lawyers for offender

IN THE HIGH COURT OF FIJI

AT SUVA

CRIMINAL JURISDICTION
Crim. Case No: HAC 74 of 2020

THE STATE

vs.

DANIEL SINGH

Counsel : Ms. U.M.Tamanikaiyaroi with Mr. L. Baleilevuka for State

Ms. D. Kumar for Offender
Date of Judgment : 23 August 2022
Date of Sentencing Hearing : 29 August 2022
Date of Sentence : 30 August 2022

(Name of the Complainant is suppressed. She is referred to as NB)

SENTENCE

1. MR. DANIEL SINGH, you stand convicted after trial of two counts of Rape and one count of Sexual Assault. The relevant parts of the information read as follows:

Count 1

Statement of offence

Rape: Contrary to Section 207 (1) and (2) (a) and (3) of the Crimes Act 2009.

Particulars of Offence

DANIEL SINGH sometime between the 1st day of January 2016 and the 31st day of December 2016 at Suva, in the Central Division, had carnal knowledge of NB, a child under the age of 13 year.

Count 2

Statement of Offence

SEXUAL ASSAULT: Contrary to Section 210 (1) (a) of the Crimes Act 2009.

Particulars of Offence

DANIEL SINGH sometimes between the 1st day of January 2016 and the 31st day of December 2016 at Suva, in the Central Division, unlawfully and indecently assaulted NB, by touching her breasts with his hands.

Count 3

Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) and (3) of the Crimes Act 2009

Particulars of Offence

DANIEL SINGH sometime between the 1st day of January 2017 and the 31st day of December 2017 at Suva, in the Central Division, penetrated the mouth of NB, a child under the age of 13 years, with his penis.

2. Having been convicted on the above counts, you come before this Court for sentence.
3. Your victim is a child and was under 13 years of age at the time of the offences. She is related to you. The victim’s mother was babysitting at your house during the period between 2016 and 2018. The victim occasionally accompanied her mother to your house during school holidays. You treated her as your own daughter and your wife assisted her in her education. She was happy in your company and she trusted you very much.
   
4. During school holidays in 2016, the victim was staying at your house. At one night, your wife told the victim to tidy your bedroom. When the victim was in the bedroom, you entered the bedroom and threatened her. You forced her by holding her hand and putting your hand on her mouth. She started shouting but no one could hear her. You took off her clothes and started touching her body. You fondled her breast in a bad way. You inserted your penis into her vagina and had sexual intercourse for about 10 minutes. Then you took out your penis, wiped the ‘white things’ and asked her to leave the room. When she indicated to you that she is going to tell her mother, you threatened to kill her if she told her mother or anyone. She was not feeling comfortable and could not walk properly. She got sick after this incident.
   
5. In 2017, when she went to the sitting room to clean it up, you approached her and tied up her hands and put your penis on her mouth for 5 minutes. She was shouting but no one could hear her. She didn’t tell her mother about what you did because you threatened to kill her.
   
6. In 2018, the victim was in a distressed condition at school. She told one of her friends about what you had done to her from 2016 until 2018. The matter was reported to the teacher and to police by the school.
   
7. The maximum penalty for Rape is life imprisonment. The sentencing tariff for rape of a child ranges from 11 to 20 years’ imprisonment (Aitcheson v State [2018] FJSC 29; CAV0012.2018 (2 November 2018). The maximum sentence for Sexual Assault is 10 years’ imprisonment and the tariff ranges from 2 years to 8 year’s imprisonment [State v Laca [2012] FJHC 252.2011 (14 November 2012).
   
8. In the sentencing process, I must have regard to the proportionality principle enshrined in the Constitution, the Sentencing and Penalties Act 2009 (SPA), the current sentencing practice and the applicable guidelines issued by the courts. I will select an appropriate starting point, having regard to the seriousness of the offence and the impact or harm caused to the victim. Then I will adjust your sentence having regard to the aggravating and mitigating factors to arrive your final sentence.
   
9. The maximum sentence prescribed by the Parliament indicates that the offence of Rape is a serious offence. When it is committed on a child, the seriousness is at its height. The United Nations Convention on Rights of the Child (to which Fiji is a party) and our own Constitution require the courts to protect the children who are vulnerable members of our society. The children are entitled to live their lives free from any form of physical or emotional abuse. Psychologists opine that the effect of sexual abuse on their later development is profound.
   
10. The Courts in Fiji have emphasised that the increasing prevalence of this offence in the community calls for deterrent sentences and have dealt the offenders with harsher punishments. The duty of this Court is to see that the sentences are such as to operate as a powerful deterrent factor to prevent the commission of such offences. The rapists must receive condign punishment to mark the society’s outrage and denunciation against sexual abuse of children. The combination of those purposes form the basis of your punishment.
    
11. First rape and sexual assault took place in a single transaction based on the same facts. Rapes and Sexual Assault form a series of offences of similar character. According to Section 17 of the Sentencing and Penalties Act 2009, 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 has a discretion to impose an aggregate sentence of imprisonment in respect of those offences. This is a fit case to impose an aggregate sentence under Section 17 of the Sentencing and Penalties Act for all the offences.
    
12. Having taken into consideration the seriousness of the offence and the harm caused to the victim, I select a starting point of 11 years from the lower range of the tariff as the first step in the sentencing process.
    
13. In the light of the Supreme Court decision in Ram v State [2015] FJSC 26; CAV12.2015 (23 October 2015), and the helpful submissions of the Counsel, I have identified the following aggravating and mitigation factors:
    

Aggravating factors:

(i) There was a gross abuse and breach of trust in this case. The victim grew up without a father and was highly vulnerable. She enjoyed the company of your family and found your house to be safe and secure. Your wife financially supported her education. You treated her as your own daughter and earned her trust and confidence. You betrayed that trust and confidence.

• (ii) The sexual abuse took place over a considerable period of time.

(iii). You instilled fear in her by threatening her not to tell what you did to anyone.

(iv). The complainant was vulnerable by virtue of her age and dependency. You exploited her vulnerability.

(v). There is a huge age disparity between you and the victim.

(vi). There was a degree of pre-planning in your offences. You ensured that the offences take place at times when the other family members and her mother are not alerted.

(vii). You exposed the innocent mind of a child to sexual activity at a young age.

(viii). The complainant in her Victim Impact Statement has described how her life has been affected due to the sexual abuse. The offences have caused a considerable psychological impact on the victim and that impact is traumatic and continuing.

Mitigating Factors:

(i). You are 35 years of age, married with one child. You are employed as a carpenter on contractual basis and you earn $100-$120 a week. You are the sole breadwinner of the family. Generally, the personal circumstances have very little mitigatory value- Raj v The State [2014] FJSC 12 CAV0003.2014 (20^th August 2014).

(ii). You do not have any previous convictions. You have maintained a clear record over the past 35 years of your life. However, your clear record is of little value in this case because you committed this crime in breach of trust. Senilolokula v State [2018] FJSC 5; CAV0017.2017 (26 April 2018).

14. Your Counsel has submitted that you are deeply remorseful. I am unable to agree with that submission. You have not shown any remorse by your conduct after the offences or during the course of the trial. You allowed the victim to relive her ordeal in court and tried to cover up your wrong by advancing unfounded allegations.
15. I add 4 years to the starting point of 11 years for above mentioned list of aggravating factors and reduce 11 months for mitigating factors to arrive at a sentence of 14 years and one months’ imprisonment.
    
16. You have been in remand for approximately one month since your arrest. Exercising my discretion under Section 24 of the Sentencing and Penalties Act, I reduce the time spent in remand from your sentence to arrive at a final aggregate sentence of 14 years’ imprisonment for all three offences.
    
17. You are young and a first offender. In view of your age, potential for rehabilitation and the societal interests, a non- parole period of 11 years is fitting in this case so that you are eligible for parole after serving 11 years in the correction facility.
    

18. Summary.

Mr. Daniel Singh, you are sentenced to an imprisonment term of 14 years with a non-parole period of 11 years. A permanent Domestic Violence Restraining Order is issued to protect the victim.

19. You have 30 days to appeal to the Fiji Court of Appeal.
    

Aruna Aluthge
Judge

30 August 2022

At Suva

Counsel:

- Office of the Director of Public Prosecution for State

- Dharmendra Kumar Lawyers for offender