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State v Chen Wen Jian [2013] FJHC 2; HAC11.2011 (15 January 2013)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 11 OF 2011

BETWEEN :

STATE

AND :

CHEN WEN JIAN

Counsel : Mr. T. Qalinauci for the State
Mr. Navinesh Nand for the Accused

Date of Sentence : 15th January 2013

SENTENCE

[1] The Accused above named was charged with two counts of Rape punishable under Section 207(1) (2) of the Crimes Decree.

[2] After the trial all three assessors unanimously found the Accused guilty on the 1st charge and divided verdict on the 2nd charge. Two of the assessors found the Accused not guilty to the 2nd count. Considering all the evidence before the Court this Court found the Accused guilty on both charges and convicted him accordingly.

[3] According to the evidence, the virtual complainant was taken by her sister in the pretext of getting her an employment and forced to have sex with the Accused.

Law:

[4] Section 207(1) of the Crimes Decree prescribes imprisonment for life as maximum punishment for the offence of rape.

Tariff:

[5] Tariff for the offence of rape is discussed in many cases and ranges from 10 years to 16 years imprisonment.

[6] In Mohammed Kasim v The State (unreported) Fiji Court of Appeal Cr. Case No. 14 of 1993; 27 May 1994 the Court of Appeal observed (at p.6):

"We consider that in any rape case without aggravating or mitigating features the starting point for sentencing an adult should be a term of imprisonment of seven years. 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. We must stress, however, that the particular circumstances of a case will mean that there are cases where the proper sentence may be substantially higher or substantially lower than that starting point."

[7] In State v Lasaro Turagabeci [1996] FJHC 173; HAC 0008.1996S (27
November 1996) Pain J. said:

"The Courts 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."

[8] In a case with some similarities to this case Shameem J in The State v
Navauniani Koroi (unreported) Cr. App. Case No. HAA0050.2002S arrived at a sentence of 12 years and explained:

"Taking the 7 years as the starting point, I increase the term by two years for the young age of the complainant, and a further three years for the fact that she is your daughter. I add a further year for the resulting pregnancy. I reduce the term by one year for the guilty plea and other mitigation ...."

[9] In State v Marawa [2004] FJHC 338 where Gates J. stated the following after citing Kasim above as well as Roberts and Roberts (1992) 4 Cr App R (S) 8, State v Turagabeci [1996] FJHC 173 and Koroi v State [2002] FJHC 152 at [10] – [11]:

"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 the crime by hardening their hearts to offenders and by meting out harsh 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......"

[10] Considering the law and tariff, I commence your sentence at 10 years imprisonment on each count since both charges were indicated under same information I order both sentence to be implemented concurrently.

[11] Aggravating factors

(a) The complainant was 14 years old and you are 47 years old.

Considering the above factor I increase your sentence by 1 year now your sentence is 11 years imprisonment.

[12] Mitigating circumstances:

Counsel for the Accused filed the mitigating submission after the due date and submits the following grounds:

(a) The Accused is 47 years old, born in China;

(b) Married with two teenage children;

(c) Parents live with him as dependent;

(d) First offender;

Considering all mitigating circumstance I reduce your sentence by 4 years. Now your sentence is 7 years imprisonment.

[13] Considering the period in remand and all other circumstances of the Accused, I act under Section 18(2) of the Sentencing & Penalties Decree and refuse to fix a non parole period. Your release will be governed by the Rules and Regulations of the Correctional Services.

[14] You are sentenced to seven (7) years imprisonment.

[15] You have 30 days to appeal to Court of Appeal.

S. Thurairaja
Judge

At Lautoka
15th January 2013

Solicitors: The Office of the Director of Public Prosecution for State
Vijay Naidu & Associates for the Accused.