State v Ali - Sentence [2025] FJHC 30; HAC65.2022 (31 January 2025)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
[CRIMINAL JURISDICTION]

CRIMINAL CASE NO: HAC 65 of 2022

STATE

V

IMAM ALI

Counsel : Ms. Shreta Prakash for the State
Mr. Ravneet Charan with Ms. Aashnal Goundar, Ms. Roberta Nair and Ms. Jotishma Bhavna for the Accused

Dates of Trial : 28 & 29 May and 5-7 & 11 June 2023
Judgment : 28 November 2024
Sentence Hearing : 12 December 2024
Sentence : 31 January 2025

The name of the complainant is suppressed. Accordingly, the complainant will be referred to as “SSK”.

SENTENCE

[1] Imam Ali, as per the Information filed by the Director of Public Prosecutions (DPP), you were charged with the following offences:

FIRST COUNT

Statement of Offence

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

Particulars of Offence

IMAM ALI, between the 1^st of July 2017 and the 31^st of July 2017, at Waiyavi, Lautoka, in the Western Division, inserted one of his fingers into the vulva of SSK, a child under the age of 13 years.

SECOND COUNT

Statement of Offence

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

Particulars of Offence

IMAM ALI, between the 1^st of July 2017 and the 31^st of July 2017, at Waiyavi, Lautoka, in the Western Division, inserted his tongue into the vulva of SSK, a child under the age of 13 years.

THIRD COUNT

Statement of Offence

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

Particulars of Offence

IMAM ALI, between the 1^st of July 2017 and the 31^st of July 2017, at Waiyavi, Lautoka, in the Western Division, inserted his penis into the mouth of SSK, a child under the age of 13 years.

[2] You pleaded not guilty to the three charges and the matter proceeded to trial. The ensuing trial was held over 6 days. The complainant (SSK) and her mother Nazmin Nisha, testified on behalf of the prosecution. You testified on your own behalf. You also called 6 other witnesses in support of your case.

[3] At the conclusion of the evidence and having reviewed the totality of the evidence, this Court found you guilty and convicted you of the said three charges of Rape.

[4] The complainant clearly testified to the manner in which you had perpetrated these offences on her on a night in the month of July 2017, whilst she was sleeping in her room. I have referred to the complainant’s evidence at length in my judgment.

[5] It was proved during the trial that between the 1 July 2017 and the 31 July 2017, at Waiyavi, Lautoka, you penetrated the vulva of the complainant SSK, with one of your fingers, and at the time the complainant SSK was a child under the age of 13 years.

[6] It was also proved during the trial that between the 1 July 2017 and the 31 July 2017, at Waiyavi, Lautoka, you penetrated the vulva of the complainant SSK, with your tongue, and at the time the complainant SSK was a child under the age of 13 years.

[7] It was further proved during the trial that between the 1 July 2017 and the 31 July 2017, at Waiyavi, Lautoka, you penetrated the mouth of the complainant SSK, with your penis, and at the time the complainant SSK was a child under the age of 13 years.

[8] It is an admitted fact that you were in a de-facto relationship with the complainant’s mother. It is also an admitted fact that you, the complainant’s mother, the complainant’s older brother (Azhar Ali) and the complainant were staying together at the complainant’s grandmother’s house in Waiyavi, at the time of the said incident.

[9] It is also admitted that the complainant’s date of birth is 26 October 2006. Therefore, at the time you committed these offences on her she was 10 years of age. At the time she testified in Court she had turned 17.

[10] In terms of the Victim Impact Statement filed in Court, it is recorded that the complainant has been emotionally and psychologically traumatized by your actions. It is clear that the impact of your actions are continuing, as the complainant remains emotionally and psychologically traumatized by the incident.

[11] Section 4(1) of the Sentencing and Penalties Act No. 42 of 2009 (“Sentencing and Penalties Act”) stipulates the relevant factors that a Court should take into account during the sentencing process. The factors are as follows:

4. — (1) The only purposes for which sentencing may be imposed by a court are —

(a) to punish offenders to an extent and in a manner which is just in all the circumstances;

(b) to protect the community from offenders;

(c) to deter offenders or other persons from committing offences of the same or similar nature;

(d) to establish conditions so that rehabilitation of offenders may be promoted or facilitated;

(e) to signify that the court and the community denounce the commission of such offences; or

(f) any combination of these purposes.

[12] Imam Ali, I have duly considered the above factors in determining the sentence to be imposed on you, which is primarily to punish and to deter offenders or other persons from committing such offences and also to signify that the Court and the community denounce the commission of such offences.

[13] Section 4(2) of the Sentencing and Penalties Act provides that a Court must also consider the following factors when sentencing an offender:

(2) In sentencing offenders a court must have regard to —

(a) the maximum penalty prescribed for the offence;

(b) current sentencing practice and the terms of any applicable guideline judgment;

(c) the nature and gravity of the particular offence;

(d) the offender’s culpability and degree of responsibility for the offence;

(e) the impact of the offence on any victim of the offence and the injury, loss or damage resulting from the offence;

(f) whether the offender pleaded guilty to the offence, and if so, the stage in the proceedings at which the offender did so or indicated an intention to do so;

(g) the conduct of the offender during the trial as an indication of remorse or the lack of remorse;

(h) any action taken by the offender to make restitution for the injury, loss or damage arising from the offence, including his or her willingness to comply with any order for restitution that a court may consider under this Decree;

(i) the offender’s previous character;

(j) the presence of any aggravating or mitigating factor concerning the offender or any other circumstance relevant to the commission of the offence; and

(k) any matter stated in this Decree as being grounds for applying a particular sentencing option.

[14] Furthermore, Section 4 (3) of the Sentencing and Penalties Act stipulates the factors that a Court must have regard to in sentencing offenders for a domestic violence offence.

“(3) In sentencing offenders for an offence involving domestic violence, a court must also have regard to —

(a) any special considerations relating to the physical, psychological or other characteristics of a victim of the offence, including —

(i) the age of the victim;

(ii) whether the victim was pregnant; and

(iii) whether the victim suffered any disability;

(b) whether a child or children were present when the offence was committed, or were otherwise affected by it;

(c) the effect of the violence on the emotional, psychological and physical well-being of a victim;

(d) the effect of the offence in terms of hardship, dislocation or other difficulties experienced by a victim;

(e) the conduct of the offender towards the victim since the offence, and any matter which indicates whether the offender —

(i) accepts responsibility for the offence and its consequences;

(ii) has taken steps to make amends to a victim, including action to minimise or address the negative impacts of the offence on a victim;

(iii) may pose any further threat to a victim;

(f) evidence revealing the offender’s —

(i) attitude to the offence;

(ii) intention to address the offending behaviour; and

(iii) likelihood of continuing to pose a threat to a victim; and

(g) whether the offender has sought and received counselling or other assistance to address the offending behaviour, or is willing to undertake such counselling or seek such assistance.”

[15] Imam Ali, I have duly considered the above factors as well in determining the sentence to be imposed on you.

[16] The offence of Rape in terms of Section 207(1) of the Crimes Act No. 44 of 2009 (“Crimes Act”) carries a maximum penalty of imprisonment for life.

[17] The severity of the offence of Rape was highlighted by the Fiji Court of Appeal in the case of Mohammed Kasim v. The State [1994] FJCA 25; AAU 21 of 93 (27 May 1994); where it was stated:

“....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.”

[18] In The State v Lasaro Turagabeci and Others (unreported) Suva High Court Crim. Case No. HAC0008.1996S; Pain J said:

“The Courts have made it clear that rapists will be dealt with severely. Rape is generally regarded as one of the gravest sexual offences. It violates and degrades a fellow human being. The physical and emotional consequences to the victim are likely to be severe. The Courts must protect women from such degradation and trauma. The increasing prevalence of such offending in the community calls for deterrent sentences.”

[19] In the case of State v. Marawa [2004] FJHC 338; HAC 16T of 2003S (23 April 2004); His Lordship Justice Anthony Gates stated:

“Parliament has prescribed the sentence of life imprisonment for rape. Rape is the most serious sexual offence. The Courts have reflected increasing public intolerance for this crime by hardening their hearts to offenders and meting out harsher sentences”.

“A long custodial sentence is inevitable. This is to mark the gravity of the offence as felt, and correctly so, by the community. Imprisonment emphasizes the public’s disapproval and serves as a warning to others who may hitherto regard such acts lightly. One must not ignore the validity of the imposition of condign punishment for serious crime. Lastly the sentence is set in order to protect women from such crimes: Roberts and Roberts (1982) 4 Cr. App R(S) 8; The State v Lasaro Turagabeci and Others (unreported) Suva High Court Crim. Case No. HAC0008.1996S.”

[20] His Lordship Justice Daniel Goundar, in the case of State v. AV [2009] FJHC 24; HAC 192 of 2008 (2 February 2009); observed:

“....Rape is the most serious form of sexual assault. In this case a child was raped. Society cannot condone any form of sexual assaults on children. Children are our future. The Courts have a positive obligation under the Constitution to protect the vulnerable from any form of violence or sexual abuse. Sexual offenders must be deterred from committing this kind of offences”.

[21] In the case of State v. Tauvoli [2011] FJHC 216; HAC 27 of 2011 (18 April 2011); His Lordship Justice Paul Madigan stated:

“Rape of children is a very serious offence indeed and it seems to be very prevalent in Fiji at the time. The legislation has dictated harsh penalties and the Courts are imposing those penalties in order to reflect society's abhorrence for such crimes. Our nation's children must be protected and they must be allowed to develop to sexual maturity unmolested. Psychologists tell us that the effect of sexual abuse on children in their later development is profound.”

[22] In the case of Felix Ram v. The State [2015] FJSC 26; CAV 12 of 2015 (23 October 2015); His Lordship Chief Justice Anthony Gates laid down the following factors that a Court should take into account when sentencing an offender who has been convicted of Rape:

“(a) whether the crime had been planned, or whether it was incidental or opportunistic;

(b) whether there had been a breach of trust;

(c) whether committed alone;

(d) whether alcohol or drugs had been used to condition the victim;

(e) whether the victim was disabled, mentally or physically, or was specially vulnerable as a child;

(f) whether the impact on the victim had been severe, traumatic, or continuing;

(g) whether actual violence had been inflicted;

(h) whether injuries or pain had been caused and if so how serious, and were they potentially capable of giving rise to STD infections;

(i) whether the method of penetration was dangerous or especially abhorrent;

(j) whether there had been a forced entry to a residence where the victim was present;

(k) whether the incident was sustained over a long period such as several hours;

(l) whether the incident had been especially degrading or humiliating;

(m) If a plea of guilty was tendered, how early had it been given. No discount for plea after victim had to go into the witness box and be cross-examined. Little discount, if at start of trial;

(n) Time spent in custody on remand;

(o) Extent of remorse and an evaluation of its genuineness;

(p) If other counts or if serving another sentence, totality of appropriate sentence.”

[23] His Lordship Justice Goundar in State v Apisai Takalaibau – Sentence [2018] FJHC 505; HAC 154 of 2018 (15 June 2018); making reference to statistics of Aggravated Burglary cases filed in the High Court in 2017 and 2018, stated that “A factor that influences sentencing is the prevalence of the offence in the community........The more prevalent is an offence, the greater the need is for deterrence and protection of the community.”

[24] This has been affirmed by the Supreme Court in Alfaaz v. State [2018] FJSC 17; CAV0009.2018 (30 August 2018); where it was recognized that the prevalence of cases of child rape calls for harsher punishments to be imposed by Courts. Their Lordships held:
“According to the statistics released by the Director of Public Prosecutions Office it appears that a number of rape victims as well as victims under the age of 18 years and victims in domestic relationships or relatives were also victims of other serious sexual offences. The rape of children is a very serious offence and it is very frequent and prevalent in Fiji. The courts must impose harsh penalties dictated by the legislation. The courts should not leniently look at this kind of serious cases of rape of children of tender years when punishing the offenders.”

[25] In the case of Anand Abhay Raj v. The State [2014] FJSC 12; CAV 0003 of 2014 (20 August 2014); Chief Justice Anthony Gates (with Justice Sathyaa Hettige and Madam Justice Chandra Ekanayake agreeing) endorsed the view that Rapes of juveniles (under the age of 18 years) must attract a sentence of at least 10 years and the acceptable range of sentences or sentencing tariff is between 10 and 16 years imprisonment.

[26] However, in the case of Aitcheson v State [2018] FJSC 29; CAV0012 of 2018 (2 November 2018); His Lordship Chief Justice Gates (with Justice Saleem Marsoof and Madam Justice Chandra Ekanayake agreeing) stated that the sentencing tariff for the Rape of a juvenile should now be increased to between 11 and 20 years imprisonment. His Lordship held:

“The tariff previously set in Raj v The State [2014] FJSC 12 CAV0003.2014 (20^th August 2014) should now be between 11-20 years imprisonment. Much will depend upon the aggravating and mitigating circumstances, considerations of remorse, early pleas, and finally time spent on remand awaiting trial for the final sentence outcome. The increased tariff represents the denunciation of the courts in the strongest terms.”

[27] In Aitcheson v State (Supra), it was said:

“[72] Undoubtedly it has been accepted by the society that rape is the most serious sexual offence that could be committed on a woman. Further it is said that; “A murderer destroys the physical body of his victim; a rapist degrades the very soul of a helpless female.””

[28] In determining the starting point within the said tariff, the Court of Appeal, in Laisiasa Koroivuki v. State [2013] FJCA 15; AAU 0018 of 2010 (5 March 2013); has formulated the following guiding principles:

“In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this time. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff. If the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range.”

[29] Imam Ali, in the light of the above guiding principles, and taking into consideration the objective seriousness of the offences, I commence your sentence at 11 years imprisonment for each count of Rape.

[30] The aggravating factors are as follows:

(i) Breach of trust. You were in a de-facto relationship with the complainant’s mother for about 9 to 10 years. As such, you were the complainant’s step-father. The complainant considered you as her own father and used to address you as “abbu”. Thus the complainant trusted you. Being so, you should have protected the complainant. Instead you have breached the trust expected from you and the breach was gross.

(ii) There was a large disparity in age between you and the complainant. The complainant was only 10 years of age, at the time you committed these offences on her. At the time of the offending you were 36 years of age. Therefore, you were 26 years older than the complainant at the time.

(iii) You took advantage of the complainant’s vulnerability, helplessness and naivety.

(iv) You have exposed the innocent mind of a child to sexual activity at such a tender age, and thereby robbed the complainant of her innocence.

(v) The complainant has been emotionally and psychologically traumatized by your actions and the harm is said to be continuing.

(vi) The frequent prevalence of the offence of Rape in our society today, especially cases of child Rape.

(vii) You are now convicted of multiple offending.

[31] Considering the aforementioned aggravating factors, I increase your sentences by a further 6 years. Now your sentence is 17 years imprisonment for each count of Rape.

[32] Imam Ali, you are now 44 years of age (Your date of birth being 5 October 1980). It is submitted that your wife, Gulnaaz Nisha (who is 44 years of age) has been recently diagnosed with Cervical Cancer State IIIC. A Medical Report from Dr. Nanise Sikiti, Gynaecology Specialist, Lautoka Aspen Hospital has been submitted to Court in proof of this fact.

[33] It is further submitted that you are said to be having a child with Autism, who is 5 years old. You are said to be the primary caregiver to your one and only child whose wellbeing depends heavily on your care and presence. A Medical Report from the Senior Medical Officer, Lautoka Aspen Hospital has been submitted to Court in proof of this fact.

[34] Most regrettably, as unfortunate as these circumstances may be, these are strictly personal circumstances and cannot be considered as mitigating circumstances.

[35] In mitigation it is submitted that you have been a person of previous good character. In support of this claim, character reference letters have been submitted from the following:

(1) Mohammed Shamim Nasir Saifi – Secretary, Ghausia Foundation.
(2) Mohammed Rafiq – Justice of the Peace.
(3) Shamshad Ali – Retired Area Advisory Counsellor.
(4) Gulnaaz Nisha – Your wife.
(5) The Director, One Stop Paint Shop Pte. Limited, Nadi.
(6) Razia Rukshana Begum – Accounts & Administration Officer, One Stop Paint Shop Pte. Limited, Nadi.
(7) Alzaid Rizwan Ali – A close friend of over 15 years.
(8) Ronald Ravinesh Prasad – A long standing neighbour who resides on Yalandi Street in Waiyavi, Lautoka.
(9) Sereana Likuyameyame – The family Housemaid.
(10) Lily Vukivuki – A family friend.

[36] It is submitted that you are a first offender. The State too confirms this position. It is further submitted that you deeply regret your actions and that you are genuinely remorseful for your conduct.

[37] The fact that you are a first offender with previous good character and for your show of remorse, which I accept as genuine, I grant you a discount of 3 years. I find no other mitigating circumstances in this case to grant you any further discounts. As such, your sentence will now be 14 years imprisonment for each count of Rape.

[38] In the circumstances, your sentences are as follows:

Count 1- Rape contrary to Section 207 (1) and (2) (b) and (3) of the Crimes Act – 14 years’ imprisonment.

Count 2 – Rape contrary to Section 207 (1) and (2) (b) and (3) of the Crimes Act – 14 years’ imprisonment.

Count 3- Rape contrary to Section 207 (1) and 2(c) and (3) of the Crimes Act – 14 years’ imprisonment.

I order that all sentences of imprisonment to run concurrently. Therefore, your

total term of imprisonment will be 14 years.

[39] Accordingly, I sentence you to a term of 14 years imprisonment. Pursuant to the provisions of Section 18 (1) of the Sentencing and Penalties Act, I fix your non-parole period as 12 years’ imprisonment.

[40] Section 24 of the Sentencing and Penalties Act reads thus:

“If an offender is sentenced to a term of imprisonment, any period of time during which the offender was held in custody prior to the trial of the matter or matters shall, unless a court otherwise orders, be regarded by the court as a period of imprisonment already served by the offender.”

[41] You were arrested for this case and produced in the Magistrate’s Court of Lautoka on 29 September 2017. You were granted bail by the Magistrate’s Court on 13 October 2017. That is a period of 2 weeks in custody. Thereafter, you were remanded into custody on 28 November 2024, the day on which you were found guilty and convicted by this Court. You have been in remand custody since that day. That is a further period of 2 months. The total period you were in custody shall be regarded as period of imprisonment already served by you. I hold that a period of 3 months should be considered as served in terms of the provisions of Section 24 of the Sentencing and Penalties Act.

[42] In the result, your final sentence is as follows:

Head Sentence - 14 years imprisonment.

Non-parole period - 12 years imprisonment.

Considering the time you have spent in remand, the time remaining to be served is as follows:

Head Sentence - 13 years and 9 months imprisonment.

Non-parole period - 11 years and 9 months imprisonment.

[43] You have 30 days to appeal to the Court of Appeal if you so wish.

Riyaz Hamza
JUDGE
HIGH COURT OF FIJI

AT LAUTOKA
Dated this 31^st Day of January 2025

Solicitors for the State: Office of the Director of Public Prosecutions, Lautoka.
Solicitors for the Accused: Ravneet Charan Lawyers, Barristers & Solicitors, Lautoka.