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State v Kumar - Sentence [2016] FJHC 34; HAC143.2011 (27 January 2016)

IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA

CRIMINAL CASE: HAC 143 OF 2011

BETWEEN :

STATE

AND :

JANEND KUMAR

Counsel : Ms. J. Fatiaki for State
Mr. Iqbal Khan for the Accused

Date of Hearing : 18th - 20th of January 2016
Date of Closing Submissions : 21st of January 2016
Date of Summing Up : 22nd of January 2016
Date of Judgment : 25th of January 2016
Date of Sentence : 27th of January 2016

SENTENCE

1. You, Janend Kumar stand convicted for one count of rape contrary to section 207(1) and 207(2)(a) of the Crimes Decree, which carries a maximum penalty of life imprisonment.
   
2. Subsequent to the hearing of this charge and the majority guilty verdict of the assessors, the court found you guilty and convicted for this offence of rape.
   
3. It was proved at the conclusion of the hearing that you picked the victim at Sigatoka town and then took her to Tute's sea breeze motel in the evening of 14th of June 2011. You then took her into a room and forcefully removed her cloths while you too were undressing yourself. You then sucked her breast and then inserted your penis into her vagina. You then took the victim back her house. The victim told her mother about this incident in the night of 15th of June 2011.Her parent then called your parent and your wife and told them about this allegation. You are the eldest brother of the victim's father.
   
4. This is a case of an acquaintance rape. It is a form of sexual coercion where a known elderly family member forcefully has sexual intercourse with the victim. This is indeed one of the worse forms of sexual offences, which infringes the victim's life, physically and emotionally.
   
5. Having considered the section 4 (1) of the sentencing and penalties decree, I find that the main purpose of this sentencing must be founded on the principle of deterrence. It is a responsibility of the court, to demonstrate the grave seriousness of the offences of this nature to the public in sentencing. I am mindful of the principle of rehabilitation; however, the court must give priority to deter the offenders and other persons from committing offences of this nature, while preserving the principle of rehabilitation.
   
6. Tariff for the offence of rape ranges from 7 years to 15 years (State v Marawa[2004] FJHC 338; HAC 0016T.2003S (23 April 2004), The State v Navauniani Koroi (unreported) Cr. App Ca. HAo. HAA0050.2002S, The State v Samu Seru (unreported) Suva Crase No.e No. HAC0021.2002S, State v Oteti Sivonatoto, Crim No 207 of 2011)
   
7. Having cered the nature of this offs offending and the seriousness surrounded with it, I select 7 years as the starting point.
   
8. You breach the trust reposed in you by the victim. The victim was 19 years old and you were 45 years old at the time of this crime was committed. You manipulatively took advantage of the naivety and the vulnerability of the victim. I consider these reasons as aggravating factors of this offence.
   
9. I now turn to consider mitigating factors for you. You have no previous convictions. The learned counsel of the defence submitted that you are 51 years old and have three daughters. The counsel further submitted that you are the sole breadwinner. Your mitigation submissions stated that you are a person with good community relationship.
   
10. Having considered the above mentioned aggravating factors, I increase one (1) years to reach eight (8) years of interim imprisonment period. In considering the mitigating factors which I discussed above, I reduce one (1) year to reach the final sentence of seven (7) years for the offence of rape.
    
11. Accordingly, Mr. Janend Kumar, I sentence you seven (7) years of imprisonment period for the offence of rape contrary to section 207(1) and 207 (2) (a) of the Crimes Decree. In pursuant of section 18 (1) of the Sentencing and Penalties Decree, you are not eligible for parole for a period of 5 years.
    
12. Since this incident involves with domestic violence, I am satisfied that there are sufficient grounds to consider making an order under the Domestic Violence Decree. I accordingly make a permanent domestic violence restraining order against the accused person with standard non molestation conditions and no contact conditions pursuant to section 24 and 28 of the Domestic Violence Decree. The above domestic violence restraining order will be in force until this court or any other competence court is varied or suspended it. Furthermore, if you breached this restraining order, you will be charged and prosecuted for an offence pursuant of section 77 of the Domestic Violence Decree.
    
13. Thirty (30) days to appeal to Court of Appeal.
    

R. D. R. Thushara Rajasinghe
Judge

At Lautoka
27th of January 2016

Solicitors : Office of the Director of Public Prosecutions
Iqbal Khan & Associates