State v Ugesh - Sentence [2018] FJMC 73; Criminal Case 256 of 2013 (9 August 2018)

IN THE MAGISTRATES COURT OF FIJI
AT NAUSORI

Criminal Case No: - 256/2013

STATE

V

RAM UGESH

Counsel: Ms.Serukai (ODPP) for the Prosecution

Ms.Tuiloma(LAC) for the Accused

Date of Judgment: 08^th of August 2018

Date of Sentence: 09^th of August 2018

SENTENCE

1. RAM UGESH , you were convicted yesterday by this Court to one count of Attempt to Rape contrary to section 208 of the Crimes Act No 44 of 2009(“Crimes Act”).
2. During the hearing the following facts were proved by the prosecution.
3. The victim was waiting for a taxi to go to her home on 10^th July 2013 around 10pm in Nausori Town. She did not have a taxi fare but she intended to pay it when she reached home. You approached her and offered to provide the transport which she accepted. When she reached her destination, you did not stop and finally when she managed to escape from the taxi, you chased her and grabbed her by hand. You told her in Hindi language that you wanted to sleep with her. Even though she was not consenting you were dragging her to the jungle and when you stumbled on to a fence and fell down she managed to run away to safety.
4. The maximum penalty for Attempted to commit Rape under the Crimes Act is 10 years imprisonment.
5. The tariff for this offence is from 12 months to 05 years (State v Sikaivotu [2014] FJHC 562; HAC008.2013 (1 August 2014).
6. In Laisiasa Koroivuki v the State [2013] FJCA 15; AAU0018.2010 (5 March 2013) his Lordship Justice Goundar discussed the guiding principles for determining the starting point in sentencing in the following manner :

"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 stage. 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."

7. Considering the objective seriousness of this offence I select 02 years as the starting point for your sentence. This is selected from the lower end of the tariff.
8. You were a public service transport provider and offered the victim a lift to her home. She got in to your vehicle trusting you and hoping that you would safely drop her to her destination. You breached her trust by committing this offence. This was committed middle of the night and it was also shown you used some violence. When the victim tried to escape you used force on her by grabbing her wrist. She received injuries as per the medical report. I consider all these as aggravating factors and add 02 years to reach 04 years imprisonment.
9. Now I would consider the mitigating factors in this case.
10. The counsel for the accused was given time till today to make her mitigation submission. But she has filed written mitigation within this limited period and I am grateful to her for that.
11. In her written mitigation the counsel submitted that you are 29 years old, married with a child of 01 year old, working as a mechanic presently and sole bread winner of the family.
12. Following the decision of Anand Abhay Raj v State [2014] FJSC 12; CAV 003 of 2014) I would not give weight for your personal mitigating factors.
13. The prosecution confirmed that you are a first offender and for that I deduct 01 year to reach 03 years imprisonment.
14. Even though this was not addressed by your counsel, I note from the court record that you were charged in this court on 13^th September 2013 and this is concluding only today after 05 years. All these times you were attending the court for this matter. You have no fault for this delay and the adjournments were granted majority of times due to various reasons which were beyond your control.
15. His Lordship Justice Goundar addressing about delays in the criminal cases in Faiyum v State [2018] FJHC 204; HAA001.2018 (20 March 2018) said :

“Section 14 (2) (g) of the Constitution gave the appellant a right to have the trial begin and conclude without unreasonable delay. The Magistrates’ Court took more than four years to conclude the case against the appellant. The charge was not complex. Neither the prosecution nor the appellant is at fault. The appellant continuously appeared whenever the case was called in court. But there was a lack of commitment by the court to hold a trial. The delay is systematic and unreasonable. Unreasonable post-charge delay is a relevant consideration in sentencing. As the Court of Appeal in Sahim v. The State MISC Action No. 17 of 2007 (25 March 2008) said:

The second question is if there has been a breach what is the remedy? In determining the appropriate remedy, absence of prejudice becomes relevant. Where an accused person is able to be tried fairly without any impairment in the conduct of the defence, the prosecution should not be stayed. Where the issue is raised on appeal, and the appellant was fairly tried despite the delay, his or her remedy lies in the proportionate reduction of sentence or in the imposition of a non-custodial sentence. (underlining mine)

[9] Similarly, in AG’s Reference (No. 2 of 2001) [2004] 2 AC 72 Lord Bingham said at [24]:

If the breach of the reasonable time requirement is established retrospectively, after there has been a hearing, the appropriate remedy may be a public acknowledgement of the breach, a reduction in the penalty imposed on a convicted defendant or the payment of compensation to an acquitted defendant.”

16. Accordingly for the unreasonable delay in this case I reduce your sentence by 06 months to reach 02 years 06 months imprisonment. This is your final sentence which this court has no power to suspend.
17. Being a taxi driver, you offered the victim to drop to her home and instead of that tried to drag her to jungle and rape her. You knew she was helpless and vulnerable at that time without a fare in her hand to go to the destination. You have brought disgrace to public service transport providers who are providing a valuable service to this country. Your behavior on that night need to be denounced and deter others from committing similar offences in future.
18. RAM UGESH, Accordingly this court sentence you to 02 years 06 months imprisonment for this charge with a non-parole period of 02 years.
19. 28 days to appeal

Shageeth Somaratne

Resident Magistrate,