State v Narayan - Sentence [2017] FJMC 57; Criminal Case 103.2006 (26 April 2017)

IN THE MAGISTRATES COURT OF FIJI

AT TAVEUNI

Criminal Case No: - 103/2006

STATE

V

ROHIT RAVINDRA NARAYAN

Counsel : Mr.R.Kumar(ODPP) for the prosecution

Mr.Korotini (LAC) for the Accused

Date of Judgment : 25^th of April 2017

Date of Sentence : 26^th of April 2017

SENTENCE

1. ROHIT RAVINDRA NARAYAN , you were convicted by this Court after a trial for one count of Rape contrary to sections 149 and 150 of the Penal Code, Cap17.
2. Some disturbing facts were revealed during the hearing. The victim with her friend on 20/05/2006 went to drink with you and another person. When the victim was alone you tried to force on her and when she refused you brutally assaulted her and then raped her. After that you left her lying there without her clothes and she has to walk to a village seeking help.
3. The maximum penalty for this offence under the Penal Code is life imprisonment.
4. In Mohammed Kasim v The State Appeal 14 of 1993 it was stated :

“We consider that any rape case without aggravating or mitigating feature the starting point for sentencing an adult should be a term of imprisonment of 7 years. It must be recognized by the courts that the crime of rape has become altogether too frequent and the sentences imposed by the courts for that crime must reflect an understandable public outrage”

5. The above decision was later supported in, Drotini v. The State [2006] FJCA 26; AAU0001.2005S (24 March 2006) where the court observed :

“The continuing frequency of such cases has resulted in a general increase in levels of sentences ordered in rape cases by the courts of Fiji. We endorse that trend. We do not suggest that the starting point described in Mohammed Kasim’s case should altered in rape cases in general but the sentencing court should not hesitate to increase the sentence substantially where there are further aggravating factors”.

6. Accordingly I select 07 years as the starting point in this case.
7. When the victim was not agreeing for your sexual advances you assaulted her brutally. The medical report shows multiple injuries in her face. After she was unconscious you left her there without her clothes and she has to walk long distance to find a shelter. There was no remorse shown by you even at the mitigation stage. I consider these as aggravating factors and add 06 years to reach 13 years imprisonment.
8. Yours counsel submitted the following as mitigating factors :
   1. First offender;
   2. Sole bread winner of the family;
   100. Married with 3 small children.
        
9. In Anand Abhay Raj v State [2014] FJSC 12; CAV 003 of 2014) his Lordship Chief Justice Anthony Gates held that in Rape cases little weight can be given for personal mitigating factors of an accused.
10. But the State has also confirmed that you are a first offender. For this I deduct 02 years from your sentence to reach 11 years.
11. This case has been pending for nearly 11 years in the court. Even though the accused has contributed to the delay by absconding numerous times, as conceded by the State, there was delay from their part also. For this I deduct 01 year to reach 10 years imprisonment.
12. According to the accused he was in remand for this case for nearly 01 month and pursuant to section 24 of the Sentencing and Penalties Decree, I deduct that period to reach 09 years 11 months.
13. There is a misconception among some men in the society that a girl who is agreeing to have drinks with them also willing to be their sexual partner. The people need to change this attitude. Being under the influence of alcohol or drugs is not an invitation from the girl for non-consensual sexual activity. Further even though this incident happened in 2006 the victim had to wait for nearly 11 years to get her justice .It would have been nightmarish experience for her in past 11 years to see the accused walking free whilst she was suffering physically and emotionally alone. Finally with this sentence this court hopes she would be able move with her life.
    14. ROHIT RAVINDRA NARAYAN, you are sentenced to 09 years 11 months imprisonment for the Offence of Rape with a non parole period of 07 years.
    15. 28 days to appeal
        

Shageeth Somaratne

Resident Magistrate