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State v Chand - Sentence [2015] FJHC 98; HAC21.2015 (20 February 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 21 OF 2015

STATE

-v-

DAVENDRA NARAYAN CHAND

Counsels : Mr. Alvin Singh for the State
Mr. I. Khan for the accused

Date of Sentence : 20 February 2015
(Name of the victim is suppressed she is referred to as SN)

SENTENCE

1. The accused is before the Court for sentence, after being convicted of three charges of Rape before the Nadi Magistrate Court after trial. On 20 January 2015 the learned Magistrate transferred this matter to this Court for mitigation and sentence.
   
2. The following facts were proven in evidence during the trial. The victim in this case was 12 years old at the time of the incident. You are uncle of the victim. You have taken her to your house and forcibly raped her in 2005. You have threatened to kill victim's mother if she divulge this to anyone. This had continued two weeks later. She was again raped in 2007.
   
3. You had no remorse for your above conduct.
   
4. According to the Penal Code, the maximum punishment for rape is Imprisonment for life. It is a serious offence.
   
5. The tariff for rape is well settled since the Judgment of Hon. Mr. Justice A.H.C.T. Gates in State v Marawa [2004] FJHC 338; HAC 0016T.2003S (23 April 2004). The starting point of a rape of an adult is 7 years. The tariff is 7 years to 15 years.
   
6. In Mohamed Kasim v The State (unreported) Fiji Court of Appeal Cr. Case No. 14 of 1993; 27 May 1994, The Court of Appeal observed:
   

"We consider that at 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. The tariff for the rape of children differs from that of adults and takes the tariff of 10 to 16 years. It was held by Court of Appeal in Raj v State [2014] FJCA 18; AAU0038.2010 (5.3.2014) Rapes of juveniles (under the age of 18 years) must attract a sentence of at least 10 years and the accepted range of sentences is between 10 and 16 years. This was upheld by the Supreme Court.
   
8. In State v Mario Tauvoli [2011] FJHC 216, HAC 027.2011 Hon. Mr. Justice Paul Madigan held that:
   

"Rape of children is a very serious offence in deed and it seems to be very prevalent in Fiji at the time. The legislation had dictated harsh penalties and the Courts are imposing those penalties in order to reflect society's abhorrence for such crimes. Our nation's children must be protected and they must be allowed to develop to sexual maturity unmolested. Psychologists tell us that the effect of sexual abuse on children in their later development is profound."

In this case 42 year step father was sentenced for 13 years with non parole period of 10 years for digital rape of 14 year old step daughter.

9. In State v Anthony [2012] FJHC 1013; HAC 151.2010 Hon. Mr. Justice Priyantha Nawana held that:
   

"The accused's engagement in his unilateral sexual activity with a little girl who was insensitive to such activity is most abhorrent. This kind of immoral act on a little girl of MB's standing is bound to yield adverse results and psychological trauma, the effect of which is indeed difficult to foresee and asses even by psychologists and sociologists. The depravity of the accused in committing the offence should be denounced to save little children for their own future; and, the men of the accused's caliber should not be allowed to deny the children of their legitimate place in the community. In passing down the sentence in case of this nature, deterrence is therefore, of paramount importance."

10. The defence had drawn attention of the Court, two sentences passed by the High Courts in recent past. The first case is State v Curuqara [2014] FJHC 900; HAC 208.2014 (10 December 2014). In this case Hon. Mr. Justice P. Kumararatnam has given a sentence of 7 years to two young accused who pleaded guilty to rape charges. As the accused was convicted after trial in this case there is no relevance of that sentence to this case.
    
11. The second case of State v Nabou [2014] FJHC 549; HAC 98.2013 (25 July 2014). I have given a sentence of 9 years to three accused where the victim was 27 years. The tariff for rape of children is different from the tariff of rape of adults. Therefore, this case too has no relevance to this case.
    
12. Defence also drew attention of the Court to the delay in this case. The accused was firstly charged in 2007. Trial commenced in 2012 and he was convicted in 2014. The remedy for delay is to seek a speedy trial of file a stay application. The accused had failed to satisfy this Court that there is complete change of lifestyle or that he is remorseful of his actions to consider this delay as a mitigating factor.
    
13. Considering the above, I commence your sentence at 11 years imprisonment for each charge of Rape.
    
14. The aggravating factors are:
    
    • (i) Serious breach of trust by the victim towards you as uncle and niece
    • (ii) Victim is of young age, the age gap is about 30 years
    • (iii) Lack of remorse, you let the victim relive her experience in Court,
    • (iv) There was more than one sexual act
      
15. I add four years for above aggravating factors. Now your sentence is 15 years.
    
16. The mitigating factors are:
    
    • (i) At the age of 53 you are first offender and claims that you assists charitable organizations
      
17. I deduct 1 year for the above mitigating factor. Now the sentence is 14 years.
    
18. You were in remand from 30.1.2015 after conviction for a period of 20 days. That period to be deducted from your sentence acting under Section 24 of the Sentencing and Penalties Decree. Now your sentence is 13 years 11 months and 10 days.
    
19. Considering Section 18 (1) of the Sentencing and Penalties Decree, I impose 11 years as non- parole period.
    
20. Having considered the Domestic nature of the relationship you had with the victim, I order a permanent Domestic Violence Restraining Order (DVRO) in place, identifying victim SN as the protected person. You are hereby ordered not to have any contact with the victim directly or by any other means, unless otherwise directed by this Court.
    
21. Your sentences are as follows:
    
    • (i) Each count of Rape - 13 years 11 months and 10 days
      

All three sentence to run concurrently.

Summary

22. You are sentenced to 13 years 11 months and 10 days imprisonment. You will not be eligible for parole until you complete serving 11 years of imprisonment.
    
23. 30 days to appeal to Court of Appeal.
    

Sudharshana De Silva
JUDGE

At Lautoka
20th February 2015

Solicitors: Office of the Director of Public Prosecution for the State
Messrs. Iqbal Khan & Associates for the accused