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State v Raghwan - Sentence [2015] FJHC 742; HAC073.2012 (18 September 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 073 OF 2012

STATE

-v-

JOHN RAGHWAN

Counsel: Mr. J. Niudamu for the State
Mr. V. Sharma for the Accused

Date of Judgment : 2nd September, 2015
Date of Judgment : 18th September, 2015

SENTENCE

[1] Mr. John Raghwan was found guilty after trial and was convicted by this Court of one count of Rape of a 13 year old boy. The Accused now comes before this Court for sentence on conviction.

[2] The facts of the case in brief were that:

On 14th May 2012, Mr. Raghwan, a barber, took the victim to a room under the guise of giving a massage, closed the door of the so called massage room, opened pants of the victim and started touching and playing with his penis. Mr. Raghwan then put him down, opened his long pants and asked the victim to suck his penis. Victim sucked his penis unwillingly for about five to ten minutes. The victim of this case was 13 years of age at the time of the incident.

[3] The maximum penalty for Rape is life imprisonment. It is now well settled, and confirmed by the Supreme Court in Anand Abhay Raj CAV003.2014 that the tariff for rape of a juvenile is 10-15 years of imprisonment.

[4] Mr. Raghwan at the time of the rape was 47 years old, and the victim was only 13, a juvenile.

[5] All non-consensual offences involve the violation of the victim's sexual autonomy and will result in harm. The seriousness of the violation may depend on a number of factors, but the nature of the sexual behaviour will be the primary indicator of the degree of harm caused in the first instance.

[6] In State v. AV [2009] FJHC 24; HAC 192 21.02.2009 it was stated that:

"rape is the most serious form of sexual assault.... Society cannot condone any form of sexual assault on children...Sexual offenders must be deterred from committing this kind of offences".

In the case of Mohhammed Kasim v. State [1994] FJCA 25;AAU 0021j.93S (27 May 1994) it was stated that;

"It must be recognised 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". (emphasis is mine)

[7] In the written submission, Counsel for Mr. Raghwan submits in mitigation that the Accused is married with four children and the sole breadwinner of the family looking after his disabled sister. He is a rheumatic heart patient and cannot undertake strenuous physical activity.

[8] In view of the dicta in Mohhammed Kasim [supra]) (highlighted parts) Defence Counsel asserts that in cases of oral penetration, the starting point of the tariff should be substantially lower as compared to other cases of penetration of anus or vagina. There is no authority cited to substantiate his claim. In absence of any legal authority I am unable to agree with the Counsel and treat oral penetration in a different category attracting a lower starting point, below the tariff set by the Supreme Court. The United Kingdom Sentencing Council Guidelines make no distinction in the starting points for penetration of the vagina, anus or mouth.

Mitigating Factors

[9] The Accused is the first offender and has a clear record hitherto.
[10] He has co-operated with police during investigations.

Aggravating Factors

[11] The Accused knew of victim's vulnerability. Victim was a juvenile at the time of the rape. He exploited his vulnerability to satisfy his lustful desires even though he was a married man with four grown up children at the time of the incident.

[12] As pointed out by the State, the age gap between the offender and the victim aggravates the background of offending. The victim was 13 years of age whilst the offender was 47 years old at the time of the offending. The age gap was 34 years. In principle, the younger the child and the greater the age gap between the offender and the victim, the higher the sentence should be.

[13] The Victim Impact Statement (VIS) filed by the State confirms my personal observations during the trial of the victim. The victim, in his evidence, described to court the trauma he was in after the awful incident.

[14] In the VIS, victim has described emotional and psychological effects of the rape in detail. Under the heading 'Life Changes' he states as follows:

" it is very hard to forget this awful thing. It will remain inside me till I die. I always regret what happened.

Growing up with this is so painful. I always think about it because it affected my life and school. I can't believe now I actually drop out of school"

[15] His former class teacher giving evidence in court described the peculiar behaviour he noticed of the victim in the classroom. I quote from my summing up the relevant parts of the evidence.

"The next morning on his way to school he could not stop thinking about it. He was late to school. According to him he was not concentrating well in school as his mind was somewhere else, about the incident. So he just cried. His class teacher Mr. Ronald noticed him crying. During recess time Mr. Ronald asked him what is wrong with him. He said nothing. He couldn't stop crying and was scared. Finally he informed Mr. Ronald what had happened to him the previous day".

Sentence

[16] Having considered all the aspects, now I proceed to sentence the Accused as follows;

[17] To reflect the gravity of offending, not the offender, I take a starting point of 10 years at the bottom of the tariff for this offence. To reflect the aggravating features, I add three years to that starting point bringing the interim sentence to thirteen years. In recognition of his strong mitigation of clean record, I deduct two years bringing the sentence to eleven years. Having considered the age and health condition of the offender, I fix the non-parole period at five years.

Summary

[18] Mr. Raghwan is convicted for Eleven years imprisonment. He will serve a minimum of five (5) years before being eligible for parole.

[19] 28 days to appeal to the Court of Appeal.

Aruna Aluthge

Judge

At Lautoka
18th September 2015

Counsel:

Office of the Director of Public Prosecution for State
Vijay Naidu & Associates for the Accused