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State v Prasad - Sentence [2019] FJHC 422; HAC137.2015 (18 April 2019)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
[CRIMINAL JURISDICTION]

High Court Criminal Case No. HAC 137 of 2015

BETWEEN

STATE

AND

DAYA PRASAD

Counsel : Ms Naibe for the State
Ms S. Khan and Mr Z. Khan for the Accused

Dates of Hearing : 25 and 26 March 2019
Closing Speeches : 26 March 2019
Date of Summing up: 28 March 2019
Date of Judgment : 08 April 2019
Date of Sentence : 18 April 2019

SENTENCE

1. You, Daya Prasad are convicted for two counts of indecent assault contrary to section 212(1) of the Crimes Act and three counts of rape contrary to section 207(1) and (2)(a) of the Crimes Act.
   
2. You were 39 years old at the time of the commission of the offences and the victim was 16 years. You are related to the victim and she referred to you as her uncle.
   
3. The brief facts relating to each count are as follows;
   

Count 1 – Indecent assault

In August 2014 during the second term school holidays the victim was learning to drive from you. When she was learning to drive you started touching her thighs over her cloths while driving. You squeezed her breasts. The victim didn’t like it, but you told her not to tell anyone about it. The victim reported the incident to her mother. But her mother did not believe her saying that you were part of the family.

Count 2 – Rape

On 27 September 2014 the victim was told by her mother to deliver some food to your place. The victim didn’t want to go, but her mother forced her to go. When the victim brought the food, you asked her to come inside the house. You locked the grill door and forced her to your room. You forcefully took off her clothes. You pushed her on the bed and got on top of her. You tried to kiss her, but the victim started moving her head. The victim kept on shouting, but no one could hear her as there was loud music played at your house. You separated her legs with your legs while holding her hands tightly. You inserted your penis into her vagina. The victim didn’t like it. She called for help by shouting, but no one could hear her. She was shocked, and she didn’t know for how long you did it. The victim said that she did not expect that from her uncle.

Count 3 – Rape

On 10 October 2014 the victim went to your place with her mother to make some sweets. Her mother had to go back home leaving the victim at your place as her mother needed something. You then locked the grill and grabbed her to the sitting room. You played a sex movie and told her to watch it. You held her tight and forced her to watch the movie. You then grabbed her to your room. You took off her clothes and your clothes. You then placed your mouth on her vagina. You were holding her hands and she shouted for help. No one could hear her as the music was loud. You then inserted your penis into her vagina. The victim didn’t like it. It was painful for her. She tried to push you and she bit your arm. You threatened her not to tell the incident to anyone.

Count 4 – Rape

On 18 October 2014 the victim was asked by her parents to go with you to Sigatoka to deliver some sweets. When you were returning in the night you stopped the vehicle on the way. You took a torch and checked around. You asked her to come to the back of the van. When the victim refused you grabbed her. You tried to kiss her, and she kept on moving her head. She didn’t like it. You took off her clothes. You inserted your penis into her vagina. She tried to push you, but you over powered her. You held her tight. The victim tried to shout but there was no one around.

Count 5 – Indecent assault

On 20 November 2014 the victim was told by her mother to go with you and exchange a packet of milk. On your way back, you parked your vehicle for the victim’s sister to come and pick her up. While waiting in the vehicle you came and started touching her. You touched her thighs and breasts. You held her hands when she tried to stop you. The victim didn’t like it and you continued to touch her thighs and breasts until her sister came.

4. Later the victim informed her sister about these incidents and the matter was reported to the police. You were indicted for the above five counts. You pleaded not guilty and after a full hearing the assessors unanimously found you not guilty. This court did not concur with the opinions of the assessors and you were found guilty and were convicted to all five counts by the judgment delivered on 08 April 2019.
   
5. You took advantage of your position as the victim’s uncle and thereby breached the trust. The age gap between you and the victim is about 23 years. You have threatened her not to report the incident to anyone. The victim had to relocate herself as a result of these incidents. The victim has suffered psychological and emotional trauma as per the Victim Impact Statement. I consider those as aggravating factors.
   
6. I have considered the submissions filed by your counsel on mitigation. You are now 44 years old and single. You support your sister and her two children. You have no previous convictions. It was submitted that you have co-operated with the police and you have assisted charitable and religious organizations.
   
7. The maximum punishment for indecent assault is 5 years and the tariff is 12 months to 4 years.
   
8. The maximum punishment for rape is life imprisonment. The tariff for child rape is now 11 years to 20 years. It was observed in Aitcheson v State [2018] FJSC 29; CAV 0012.2018 (2 November 2018);

“The tariff previously set in Raj v The State[2014] FJSC 1JSC 12 CAV0003.220^th&#1p> August 2014uld now be betwebetween 11-20 years imprisonment. Much will depend upon the aggravating and mitigating circumstanconsiions morse, earlyearly pleas, and finally time spent on remn remand awaiting trial for the final sent sentence outcome. The increased tariff represents the denunciation of the courts in the strongest terms.”