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State v Din [2012] FJHC 1115; HAC28.2011 (21 May 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 28 OF 2011

BETWEEN:

STATE

AND:

JAMALU DIN

Counsel : Ms. S. Puamau for the State
Mr. S. Shah for the Accused

Date of Sentence : 21st May 2012

SENTENCE

1. The Director of Public Prosecution had preferred the following charge against the Accused.
   

Count

Statement of Offence (a)

ATTEMPT TO COMMIT RAPE: Contrary to Section 208 of the Crimes Decree, 2009.

Particulars of Offence (b)

Jamalu Din, on the 5th day of January 2011, at Nadi in the Western Division, attempted to insert his penis into the mouth of Mohammed Alfaaz Ali, 12 years.

2. The Accused pleaded guilty to the charge and admitted to the Summary of Facts submitted by the State Counsel. The same is re-produced for easy reference:
   

"In November 2009, Mohammed Alfaaz Ali, the victim was sent to board the Sabeto Muslim School league Mosque to learn the Holy Koran and other principle tenets of Islam. On the 5th January 2011, Jamalu Din, the accused took the victim and four other students to Lautoka to prepare their uniforms for the year. They travelled in the accused vehicle. When they returned home that evening, the accused directed the victim to change and feed his chickens. The victim then went to the accused home and the other students went out to play soccer.

The victim went to the side of the accused house and filled the chicken feed in a bucket and took it to the back of the accused house. Whilst the victim was reaching into the bucket to grab a handful of the chicken feed, the accused grabbed him around the waist form behind, turned him around and kissed him on the lips. The victim managed to turn his head away after a few seconds and then the accused pressed his shoulders with both his hands, causing the victim to sit on the ground. The accused then unzipped his own trousers and tried to force open the victim's mouth in order to insert his penis into his mouth.

The victim managed to get away from the accused and returned to the boarding house, where he informed Sharuf. This occurred prior to "Asar", the Muslim hour of prayer at 6pm. Following prayers at 8pm, the victim picked up the accused phone and called his mother's mobile phone. He then relayed to his mother what the accused had done to his that day. She then informed her husband of what their son had told her that night.

The next morning at around 8am, Mrs. Shabnam Nisha and Mohammed Faiyaz went to Mr. Faiyaz's brother Mohammed Feroz Shamim's home. They told him their son had been sexually harassed and they wanted to fetch him and take his home. Mr Shamim got ready and they arrived at the Sabeto Muslim League at around 9.30am. They met the accused and confronted his over their son/nephew's allegations. The accused begged their forgiveness, said that he made a mistake and asked them not to report the matter to the Police. They disregarded this and lodged a complained with the Police.

The accused was interviewed under caution on the 6th January 2011, wherein he denied the allegations put to him. He was later charged for one count of Rape, contrary to section 207 (2) © of the Crimes Decree No 44 of 2009. This charge was later amended to that of Attempt to Commit Rape, contrary to Section 208 of the Crimes Decree No. 44 of 2009.

3. Jamalu Din you stand convicted under Section 208 of the Crimes Decree for attempted rape.
   
4. Section 208 of Crimes Decree prescribes maximum sentence as 10 years imprisonment.
   
5. Tariff for this offence was discussed in many cases. In Aunima –v- State (2001) FJHC 105; Shameem J said the tariff ranges from 12 months to 5 years imprisonment.
   
6. The Accused attempted to rape an innocent boy who came to study Holy Quran at Sabeto Muslim School League Mosque, is a serious breach of trust. Considering all factors I commence your sentence at 3 years.
   
7. Considering the aggravating factors
   
   1. The victim was helpless boy aged 12 years;
   2. Severe breach of trust, of Teacher and student relationship;
   100. Because of your conduct the child has to move to another school;
   4. You betrayed the position of a Teacher who teaches Islam.
      

Considering all above factors I increase your sentence by 4 years, now your sentence is 7 years imprisonment.

8. Considering your mitigating circumstances:
   
   1. You are 1st offender;
   2. You have pleaded guilty;
   100. You are married with 3 children;
   4. You are the sole bread winner of your family;
   5. You have just obtained PSV licence and started working as taxi driver.
      

Considering all your mitigating factors I reduce your sentence by 4 years. Now your sentence is 3 years imprisonment.

9. Your Counsel requests the Court to consider a suspended sentence to you.
   
10. I consider section 26(1) of the Sentencing and Penalties Decree and it states as follows:
    

"On sentencing an offender to a term of imprisonment a court may take an order suspending, for a period specified by the court, the whole or part of the sentence, I it is satisfied that it is appropriate to do so in the circumstances."

11. Considering all your mitigating circumstances especially your young children I suspend your sentence for a period of 7 years. If you commit any offence within the operational period you will be serving this sentence together with the punishment in the subsequent offence.
    
12. Because of your act the victim child and the family had to move out of the place of residence and settle at a new area. Further the victim had to find another school. Considering these factors I consider to act under Section 31(1) of the Sentencing and Penalties Decree:
    
    1. If a person is found guilty of an offence the court may, subject to any specific provision relating to the offence, fine the offender in addition to or instead of any other sentence to which the offender may be liable;
       
    2. The maximum fine that a court may impose under sub-section (1) is the maximum amount specified in the provision which prescribes the relevant offence, and a court may impose an lesser fine than the maximum;
       
    3. Where no fine is fixed for an offence the fine which a court may impose is unlimited, but a court shall not impose an excessive fine.
       
13. After considering all, I impose $2000 fine on you in default 6 months and 20 days imprisonment.
    
14. Considering your family background you are given 3 months to pay the fine in installments:
    

1st installment of $700.00 to be paid on or before 06/06/2012

2nd installment of $700.00 to be paid on or before 06/07/12

3rd and final installment be paid on or before 06/08/12.

15. The case will be mentioned on 06/06/2012 at 9.30am.
    
16. Once the fine is paid the total amount paid will be given to the victim.
    
17. Summary of Sentence:
    

You are sentenced to 3 years imprisonment and the same is suspended for a period of 7 years. In addition to the above sentence you are imposed a fine of $2000 in default 6 months and 20 days imprisonment.

18. 30 days to appeal to the Court of Appeal.
    

S. Thurairaja
Judge

At Lautoka
21st May 2012

Solicitors : he Office of the Director of Public Prosecution for State
Sheik Shah Esquire for the Accused