IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

Criminal Case No. HAC 41of 2016

STATE

v

MOHAMMED RASHEED

Counsels:		Mrs. A. Vavadakua for the State
			Mr. A. Sen for the Accused

Dates of Hearing:  	23, 24 and 25 July 2018
Date of Summing Up: 	26 July 2018
Date of Judgment:  	26 July 2018
Date of Sentence:  	27 July 2018

SENTENCE

1.	The accused has been convicted after trial in this Court on the 	following counts:

FIRST COUNT
(REPRESENTATIVE COUNT)
Statement of Offence

	RAPE: Contrary to section 207 (1) and (2) (a) and (3) of the 	Crimes Decree No. 44 of 2009.
Particulars of Offence

	MOHAMMED RASHEED, between the 1st day of November 2012 	and the 31st day of December 2012, in Labasa, in the Northern 	Division, had carnal knowledge of A., a child under the age of 	13 years.

SECOND COUNT
(REPRESENTATIVE COUNT)
Statement of Offence

	RAPE: Contrary to section 207 (1) and (2) (a) and (3) of the 	Crimes Decree No. 44 of 2009.

Particulars of Offence

	MOHAMMED RASHEED, between the 1st day of December 2014 	and the 31st day of December 2014, in Labasa, in the Northern 	Division, had carnal knowledge of A., a child under the age of 	13 years.

	THIRD COUNT
(REPRESENTATIVE COUNT)
Statement of Offence

	RAPE: Contrary to section 207 (1) and (2) (a) and (3) of the 	Crimes Decree No. 44 of 2009.

Particulars of Offence

	MOHAMMED RASHEED, between the 1st day of January 2015 	and the 30th day of April 2015, in Labasa, in the Northern 	Division, had carnal knowledge of A., a child under the age of 	13 years.

2.	The  evidence  elicited  at  trial  proved  that  the  accused  is 	the Uncle of the victim (who for the purposes of these reasons 	for sentence is referred to as A.). At the time of the offence the 	accused was 30 and A. was 12 years old. 

3.	In December 2013 while they were both observing religious rites 	for A.’s deceased grandmother (the accused’s mother-in-law) the 	accused woke A. in the night while she was asleep and raped 	her.

4.	Again in December 2014 he again raped her when her parents 	were away.

5.	Finally he raped her in early 2015, again by stealing into her 	room at night.

6.	The child spoke of other incidents of rape but was not able to 	recall the dates and for this reason the counts are 	representative counts 

7.	The girl A. then experienced morning sickness and a hospital 	attendance confirmed her pregnancy. It was only then that the 	family members learned of the rapes. 

8.	Rape of a child under 13 is proved when sexual connection is 	proved. There is no need to find lack of consent because a child 	under 13 is unable to consent. 

9.	Mr. Sen refers to the crime as “statutory rape” which it might 	well be, that does not alleviate the seriousness of the crime 	committed against a child. 

10.	The maximum penalty for rape is life imprisonment and the 	Supreme Court has held that the sentence for rape of a child 	under 18 should be a term of imprisonment of between 10 and 	16 years (see Anand Abhay Raj CaV0003 of 2014).

11.	In mitigation, Mr. Sen reminds the Court that the accused is 35 	years old, married with two children. He has a clear record . He 	also stresses that there was no element of violence used in 	perpetrating these crimes. At one time the accused was a 	Muslim priest serving in Labasa before he moved to an isolated 	farm. Mr. Sen prays that having acted in such a high religious 	position, he would have provided services to the Muslim 	community which should be taken into account in his favour.

12.	State Counsel submits that the aggravating features in this case 	is the gross breach of trust between uncle and niece with an age 	difference of 18 years. She also reminds the Court that the 	crimes made the child pregnant for which she had to leave 	school, ruining her future.

13.	I take as a starting point a term of 10 years at the bottom end of 	the tariff band. For the aggravating features referred to in the 	preceeding paragraph I add 7 years to that starting point. For 	the very short time the accused spent in custody and for his 	hitherto clear record I deduct 2 years making a final sentence of 	imprisonment that the accused will serve a term of 15 years 	imprisonment. He will serve 12 years of that sentence before he 	is eligible for parole.

14.	I cannot accept Mr. Sen’s point that serving as a Muslim priest 	is a mitigating factor. Such a person is deemed to be righteous 	and principled and meant to be an example to his community, 	not having sexual relations with a very young girl making her 	pregnant.

15.	The accused has 30 days to appeal to the Court of Appeal.

P.K. Madigan
Judge

At Labasa
27 July 2018