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State v Nadan - Sentence [2020] FJHC 682; HAC113.2015 (25 August 2020)

IN THE HIGH COURT OF FIJI

AT LAUTOKA

[CRIMINAL JURISDICTION]

CASE NO: HAC. 113 of 2015

BETWEEN

STATE

AND

VISHWA NADAN

Counsel Ms. L. Latu for State

: Mr. V. Chandra for the Accused

Hearing on : 07^th of August 2020

Sentence : 25^th of August 2020

SENTENCE on NON-PAROLE

1. Mr. Vishwa Nadan, You were convicted by this court on 3 counts of Rape and sentenced to 14 years of imprisonment for each of the offences to run concurrently, with a period of non-parole fixed at 12 years.
   
2. You being dissatisfied of the conviction and the sentence, appealed against them and the Supreme Court by its judgment dated 31^st October 2019, partially allowed your appeal on the issue of setting a non-parole and dismissed it on the rest of the grounds.

3. Accordingly, there were two issues on which this matter is referred back to the High Court by his lordships. They were;
   1. Whether non-parole period should be fixed
   2. The length of the said non-parole period.
      
4. Subsequent to the ruling of the Supreme Court by his Lordships, there has been a legislative amendment and in result present law makes it compulsory to impose a non-parole period. Both learned counsels agree on the said contention and this court need not venture further into the said issue. Therefore, I will proceed to address the second issue referred to by his lordships.
   
5. In setting a non-parole period, the principals identified by the Supreme Court in the case of Bogidrau v State [2016] FJHC 5; CAV0031.2015 (21 April 2016) would provide an appropriate guideline. Accordingly; at [6]
   • (i) “[T]he non-parole term should not be so close to the head sentence as to deny or discourage the possibility of rehabilitation. Nor should the gap between the non-parole term and the head sentence be such as to be ineffective as a deterrent”: per Calanchini P in Tora v The State [2015] FJCA 20 at [2].
   • (ii) “[T]he sentencing Court minded to fix a minimum term of imprisonment should not fix it at or less than two thirds of the primary sentence of the Court. It will be wholly ineffective if a minimum sentence finishes prior to the earliest release date if full remission of one third is earned. Experience shows that one third remission is earned in most cases of those sentenced to imprisonment”: Raogo v State (CAV 003 of 2010, 19 August 2010)
     
6. Therefore it can safely be assumed that non-parole sentence should always be;
   1. Should not be too close to the head sentence and there should be a minimum gap of 6 months in between (as for section 18(4) of the Sentencing and Penalties Act); and
   2. Should be more than two thirds of the head sentence. (Though I do not agree with this contention, both parties submit so and this is not the time to venture into this in detail.)
      
7. The approved head-sentence in the present case is 14 years of imprisonment. Therefore, the appropriate range for the parole period in the present case would be, between 8 years and 8 months and 13 years and 6 months. This leaves a range of 4 years and 10 months (58 months) and the exact period would be dependent on the circumstances of this case.
   
8. It is well established that no factor either mitigatiory or aggravatory should be double counted. Practically speaking, there cannot be any factor which was not submitted before in deciding the appropriate sentence to be considered at this stage, if learned counsels have acted before, with due diligence. I do not think that it is appropriate for this to be a stage where the counsels would be able to adduce fresh mitigating or aggravating factors, which they could not submit before by an oversight.
   
9. When considered the submissions of the learned counsel, I do not find many fresh factors to be considered in fixing the non-parole. However, I find that the alleged victim is over 25 years now and the accused do not pose any threat to her. In addition, as for the available medical reports, the accused seemed to have developed a mental sickness, subsequent to the offending. Since the accused have no other allegations against him I do not consider him to be a threat to the community at large. Therefore, from the range of 58 months, I find it reasonable to select 16 months and add it to the minimum term of 8 years and 8 months, making it 10 years.
   
10. Therefore, you are sentenced to 14 years of imprisonment with non-parole set at 10 years. Your sentence would commence from the 08^th of October 2015.
    

11. You have 30 days to appeal to the Court of Appeal if you so desire.

Chamath S. Morais

JUDGE

Solicitors for the State : Office of the Director of Public Prosecutions, Lautoka.

Solicitors for the Accused : Millbrook Hills Law Partners, Ba.