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State v Chand - Sentence [2022] FJHC 376; HAC211.2019 (15 July 2022)

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

CRIMINAL CASE NO: HAC 211 of 2019

STATE

V

PARBIND CHAND

Counsel : Ms. Prenika Lata for the State
Mr. Jitendra Reddy for the Accused

Dates of Trial : 19, 21, 22, 25 & 26 April 2022

Judgment : 9 May 2022

Sentence Hearing : 2 June 2022

Sentence : 15 July 2022

The name of the complainant is suppressed. Accordingly, the complainant will be referred to as “PPK”.

SENTENCE

[1] Parbind Chand, you were charged with the following offences:

COUNT 1

Statement of Offence (a)

COMMON ASSAULT: Contrary to Section 274 (1) of the Crimes Act.

Particulars of Offence (b)

PARBIND CHAND, on the 7^th day of April 2017, at Nadi, in the Western Division, unlawfully assaulted PPK by slapping her.

COUNT 2

Statement of Offence (a)

SEXUAL ASSAULT: Contrary to Section 210 (1) (a) of the Crimes Act.

Particulars of Offence (b)

PARBIND CHAND, on the 7^th day of April 2017, at Nadi, in the Western Division, unlawfully and indecently assaulted PPK by kissing her on her lips and sucking her breast.

COUNT 3

Statement of Offence (a)

SEXUAL ASSAULT: Contrary to Section 210 (1) (a) of the Crimes Act.

Particulars of Offence (b)

PARBIND CHAND, on the 8^th day of April 2017, at Nadi, in the Western Division, unlawfully and indecently assaulted PPK by kissing her and sucking her breast.

COUNT 4

Statement of Offence (a)

RAPE: Contrary to Section 207 (1) & (2) (b) of the Crimes Act.

Particulars of Offence (b)

PARBIND CHAND, on the 8^th day of April 2017, at Nadi, in the Western Division, penetrated the vagina of PPK, with his fingers without her consent.

[2] You pleaded not guilty to the charges and the matter proceeded to trial. The ensuing trial was held over 5 days. The complainant (PPK), and her mother, Lalini Nita Chand, testified on behalf of the prosecution. You testified on your own behalf. You also called three other witnesses in support of your case-Parnesh Chand (Your son), Kritika Vandana Deo (Your daughter in law) and Reena Kumari (Your wife).

[3] At the conclusion of the evidence and having reviewed the said evidence, this Court found you guilty and convicted you of all four counts as charged.

[4] It must be mentioned that during the course of the trial you were represented by Messrs Babu Singh & Associates, Lautoka. However, pursuant to this Court finding you guilty and convicting you, you changed your Counsel. Accordingly, your Submissions in Mitigation were filed by your new Counsel, Messrs Jiten Reddy Lawyers, Nakasi, who appeared on your behalf during the sentence hearing.

[5] It was proved during the trial that, on 7 April 2017, at Nadi, you unlawfully assaulted PPK by slapping her.

[6] It was proved during the trial that, on 7 April 2017, at Nadi, you unlawfully and indecently assaulted PPK, by kissing her on her lips and sucking her breast.

[7] It was also proved during the trial that, on 8 April 2017, at Nadi, you unlawfully and indecently assaulted PPK, by kissing her and sucking her breast.

[8] It was further proved during the trial that, on 8 April 2017, at Nadi, you penetrated the vagina of the complainant PPK, with your fingers, without her consent.

[9] It is an agreed fact that the complainant is your niece and that complainant’s father, namely Pradeep Kumar, had made arrangements with you for the complainant to stay at your place and attend Nadi Technical College.

[10] The complainant testified that her date of birth is 22 February 2000. Therefore, at the time you committed these offences on her she was 17 years of age, and as such a juvenile. At the time she testified in Court she had turned 22.

[11] The complainant clearly testified to all the aforesaid incidents. I have referred to the complainant’s evidence at length in my judgment.

[12] In terms of the Victim Impact Statement filed in Court, it is recorded that the complainant has been emotionally and psychologically traumatized by your actions. It is clear that the impact of your actions are continuing, as the complainant remains emotionally and psychologically traumatized by the incidents.

[13] Section 4(1) of the Sentencing and Penalties Act No. 42 of 2009 (“Sentencing and Penalties Act”) stipulates the relevant factors that a Court should take into account during the sentencing process. The factors are as follows:

4. — (1) The only purposes for which sentencing may be imposed by a court are —

(a) to punish offenders to an extent and in a manner which is just in all the circumstances;

(b) to protect the community from offenders;

(c) to deter offenders or other persons from committing offences of the same or similar nature;

(d) to establish conditions so that rehabilitation of offenders may be promoted or facilitated;

(e) to signify that the court and the community denounce the commission of such offences; or

(f) any combination of these purposes.

[14] I have duly considered the above factors in determining the sentence to be imposed on you, which is primarily to deter offenders or other persons from committing such offences and also to signify that the Court and the community denounce the commission of such offences.

[15] Section 4 (3) of the Sentencing and Penalties Act stipulates the factors that a Court must have regard to in sentencing offenders for a domestic violence offence.

“(3) In sentencing offenders for an offence involving domestic violence, a court must also have regard to —

(a) any special considerations relating to the physical, psychological or other characteristics of a victim of the offence, including —

(i) the age of the victim;

(ii) whether the victim was pregnant; and

(iii) whether the victim suffered any disability;

(b) whether a child or children were present when the offence was committed, or were otherwise affected by it;

(c) the effect of the violence on the emotional, psychological and physical well-being of a victim;

(d) the effect of the offence in terms of hardship, dislocation or other difficulties experienced by a victim;

(e) the conduct of the offender towards the victim since the offence, and any matter which indicates whether the offender —

(i) accepts responsibility for the offence and its consequences;

(ii) has taken steps to make amends to a victim, including action to minimise or address the negative impacts of the offence on a victim;

(iii) may pose any further threat to a victim;

(f) evidence revealing the offender’s —

(i) attitude to the offence;

(ii) intention to address the offending behaviour; and

(iii) likelihood of continuing to pose a threat to a victim; and

(g) whether the offender has sought and received counselling or other assistance to address the offending behaviour, or is willing to undertake such counselling or seek such assistance.”

[16] Parbind Chand, I will first deal with the count of Rape that you have been found guilty and convicted, which is a count of Rape in terms of Section 207 (1) & (2) (b) of the Crimes Act No. 44 of 2009 (“Crimes Act”) (Count 4). The offence of Rape in terms of Section 207(1) of the Crimes Act carries a maximum penalty of imprisonment for life.

[17] The severity of the offence of Rape was highlighted by the Fiji Court of Appeal in the case of Mohammed Kasim v. The State [1994] FJCA 25; AAU 21 of 93 (27 May 1994); where it was stated:

“....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.”

[18] In the case of State v. Marawa [2004] FJHC 338; HAC 16T of 2003S (23 April 2004); His Lordship Justice Anthony Gates stated:

“Parliament has prescribed the sentence of life imprisonment for rape. Rape is the most serious sexual offence. The Courts have reflected increasing public intolerance for this crime by hardening their hearts to offenders and meting out harsher sentences”.

“A long custodial sentence is inevitable. This is to mark the gravity of the offence as felt, and correctly so, by the community. Imprisonment emphasizes the public’s disapproval and serves as a warning to others who may hitherto regard such acts lightly. One must not ignore the validity of the imposition of condign punishment for serious crime. Lastly the sentence is set in order to protect women from such crimes: Roberts and Roberts (1982) 4 Cr. App R(S) 8; The State v Lasaro Turagabeci and Others (unreported) Suva High Court Crim. Case No. HAC0008.1996S.”

[19] In The State v Lasaro Turagabeci and Others (supra) Pain J had said:

“The Courts have made it clear that rapists will be dealt with severely. Rape is generally regarded as one of the gravest sexual offences. It violates and degrades a fellow human being. The physical and emotional consequences to the victim are likely to be severe. The Courts must protect women from such degradation and trauma. The increasing prevalence of such offending in the community calls for deterrent sentences.”

[20] His Lordship Justice Daniel Goundar, in the case of State v. AV [2009] FJHC 24; HAC 192 of 2008 (2 February 2009); observed:

“....Rape is the most serious form of sexual assault. In this case a child was raped. Society cannot condone any form of sexual assaults on children. Children are our future. The Courts have a positive obligation under the Constitution to protect the vulnerable from any form of violence or sexual abuse. Sexual offenders must be deterred from committing this kind of offences”.

[21] In the case of State v. Tauvoli [2011] FJHC 216; HAC 27 of 2011 (18 April 2011); His Lordship Justice Paul Madigan stated:

“Rape of children is a very serious offence indeed and it seems to be very prevalent in Fiji at the time. The legislation has 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.”

[22] In the case of Felix Ram v. The State [2015] FJSC 26; CAV 12 of 2015 (23 October 2015); His Lordship Chief Justice Anthony Gates laid down the following factors that a Court should take into account when sentencing an offender who has been convicted of Rape:

“(a) whether the crime had been planned, or whether it was incidental or opportunistic;

(b) whether there had been a breach of trust;

(c) whether committed alone;

(d) whether alcohol or drugs had been used to condition the victim;

(e) whether the victim was disabled, mentally or physically, or was specially vulnerable as a child;

(f) whether the impact on the victim had been severe, traumatic, or continuing;

(g) whether actual violence had been inflicted;

(h) whether injuries or pain had been caused and if so how serious, and were they potentially capable of giving rise to STD infections;

(i) whether the method of penetration was dangerous or especially abhorrent;

(j) whether there had been a forced entry to a residence where the victim was present;

(k) whether the incident was sustained over a long period such as several hours;

(l) whether the incident had been especially degrading or humiliating;

(m) If a plea of guilty was tendered, how early had it been given. No discount for plea after victim had to go into the witness box and be cross-examined. Little discount, if at start of trial;

(n) Time spent in custody on remand;

(o) Extent of remorse and an evaluation of its genuineness;

(p) If other counts or if serving another sentence, totality of appropriate sentence.”

[23] His Lordship Justice Goundar in State v Apisai Takalaibau – Sentence [2018] FJHC 505; HAC 154 of 2018 (15 June 2018); making reference to statistics of Aggravated Burglary cases filed in the High Court in 2017 and 2018, stated that “A factor that influences sentencing is the prevalence of the offence in the community........The more prevalent is an offence, the greater the need is for deterrence and protection of the community.”

[24] This has been affirmed by the Supreme Court in Alfaaz v. State [2018] FJSC 17; CAV0009.2018 (30 August 2018); where it was recognized that the prevalence of cases of child rape calls for harsher punishments to be imposed by Courts. Their Lordships held:
“According to the statistics released by the Director of Public Prosecutions Office it appears that a number of rape victims as well as victims under the age of 18 years and victims in domestic relationships or relatives were also victims of other serious sexual offences. The rape of children is a very serious offence and it is very frequent and prevalent in Fiji. The courts must impose harsh penalties dictated by the legislation. The courts should not leniently look at this kind of serious cases of rape of children of tender years when punishing the offenders.”

[25] In the case of Anand Abhay Raj v. The State [2014] FJSC 12; CAV 0003 of 2014 (20 August 2014); Chief Justice Anthony Gates (with Justice Sathyaa Hettige and Madam Justice Chandra Ekanayake agreeing) endorsed the view that Rapes of juveniles (under the age of 18 years) must attract a sentence of at least 10 years and the acceptable range of sentences or sentencing tariff is between 10 and 16 years imprisonment.

[26] However, in the case of Aitcheson v State [2018] FJSC 29; CAV0012 of 2018 (2 November 2018); His Lordship Chief Justice Gates stated that the sentencing tariff for the Rape of a juvenile should now be increased to between 11 and 20 years imprisonment. His Lordship held:

“The tariff previously set in Raj v The State [2014] FJSC 12 CAV0003.2014 (20^th August 2014) should now be between 11-20 years imprisonment. Much will depend upon the aggravating and mitigating circumstances, considerations of remorse, early pleas, and finally time spent on remand awaiting trial for the final sentence outcome. The increased tariff represents the denunciation of the courts in the strongest terms.”

[27] In determining the starting point within the said tariff, the Court of Appeal, in Laisiasa Koroivuki v. State [2013] FJCA 15; AAU 0018 of 2010 (5 March 2013); has formulated the following guiding principles:

“In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this time. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff. If the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range.”

[28] In the light of the above guiding principles, and taking into consideration the objective seriousness of the offence, I commence your sentence at 11 years imprisonment for the fourth count of Rape.

[29] The aggravating factors are as follows:

(i) You are the uncle of the complainant. You are married to the complainant’s father’s biological sister. Her father had made arrangements with you for the complainant to stay at your residence and attend Nadi Technical College. Thus the complainant trusted you and depended on you. Being so, you should have protected and safeguarded the complainant. Instead you have breached the trust expected from you and the breach was gross.

(ii) There was a large disparity in age between you and the complainant. The complainant was 17 years of age, at the time you committed these offences on her. At the time of the offending you were 49 years of age. Therefore, you were over 32 years older than the complainant.

(iii) You took advantage of the complainant’s vulnerability, helplessness and naivety.

(iv) You have exposed the innocent mind of a child to sexual activity at such a tender age, and thereby robbed the complainant of her innocence.

(v) I find that there was some degree of planning and premeditation on your part in committing these offences. You had committed these offences on the complainant at a time you found her alone.

(vi) The complainant has been emotionally and psychologically traumatized by your actions and the harm is said to be continuing.

(vii) You are now convicted of multiple offending.

[30] Considering the aforementioned aggravating factors, I increase your sentence by a further 6 years. Now your sentence is 17 years imprisonment for the count of Rape.

[31] Parbind Chand, you are now 55 years of age (Your date of birth being 2 June 1967). You are married and residing with your wife, son, daughter in law, mother in law and 2 grandchildren at your family home in Sabeto, Nadi. You are said to be a farmer by occupation and supporting your family with your earnings.

[32] It is submitted that you are coming from a poor family. Your father was an asthmatic patient and was not able to work. Since you were the eldest in your family you had to leave school at a tender age of 13 (Class 7), as you have to look after your mother and your 4 siblings. You had started working in cane fields from a very young age. You have also worked as a truck driver and also as a bus driver.

[33] It is also submitted that you have been involved in various charitable and religious organizations.

[34] Unfortunately, the above are all personal circumstances and cannot be considered as mitigating circumstances.

[35] As per the Antecedent Report filed, it is noted that there are nil previous convictions recorded against you. The State Counsel too has confirmed that you are a first offender. Therefore, Court considers you as a person of previous good character.

[36] Your Counsel has submitted that you are now remorseful of your actions. However, this Court cannot consider your belated show of remorse as genuine.

[37] I accept that you are a person of previous good character. Accordingly, considering the aforesaid mitigating factor I reduce 2 years from your sentence. Now your sentence will be 15 years imprisonment for the count of Rape.

[38] Parbind Chand, you have been found guilty and convicted of two counts of Sexual Assault in terms of Section 210 (1) (a) of the Crimes Act (Counts 2 and 3).

[39] The offence of Sexual Assault in terms of Section 210(1) of the Crimes Act carries a maximum penalty of 10 years imprisonment.

[40] In the cases of State v. Abdul Khaiyum [2012] FJHC 1274; Criminal Case (HAC) 160 of 2010 (10 August 2012); and State v. Epeli Ratabacaca Laca [2012] FJHC 1414; HAC 252 of 2011 (14 November 2012); Justice Madigan proposed a tariff between 2 years to 8 years imprisonment for offences of Sexual Assault in terms of Section 210 (1) of the Crimes Act.

[41] It was held in State v. Laca (supra) “The top of the range is reserved for blatant manipulation of the naked genitalia or anus. The bottom of the range is for less serious assaults such as brushing of covered breasts or buttocks.”

“A very helpful guide to sentencing for sexual assault can be found in the United Kingdom's Legal Guidelines for Sentencing. Those guidelines divide sexual assault offending into three categories:

Category 1 (the most serious)

Contact between the naked genitalia of the offender and naked genitalia, face or mouth of the victim.

Category 2

(i) Contact between the naked genitalia of the offender and another part of the victim's body;

(ii) Contact with the genitalia of the victim by the offender using part of his or her body other than the genitalia, or an object;

(iii) Contact between either the clothed genitalia of the offender and the naked genitalia of the victim; or the naked genitalia of the offender and the clothed genitalia of the victim.

Category 3

Contact between part of the offender's body (other than the genitalia) with part of the victim's body (other than the genitalia).”

[42] In this case, as per Counts 2 and 3, it has been proved that you unlawfully and indecently assaulted the complainant, by kissing her (on her lips) and sucking her breasts. Therefore, in my opinion, the offences in Counts 2 and 3 should be categorized under Category 3 above.

[43] As such, in the light of the above guiding principles, and taking into consideration the objective seriousness of the offence, I commence your sentences at 2 years imprisonment for the second and third counts of Sexual Assault, in terms of Section 210 (1) (a) of the Crimes Act.

[44] Considering the aggravating factors aforementioned, which are common for all offences, and the sole mitigating factor, which is your previous good character, I impose on you a sentence of 5 years’ imprisonment each for the second and third counts of Sexual Assault.

[45] Parbind Chand, you have been found guilty and convicted of one count of Common Assault in terms of Section 274 (1) of the Crimes Act (Count 1).

[46] In terms of Section 274(1) of the Crimes Act “A person commits a summary offence if he or she unlawfully assaults another person.” The prescribed penalty for this offence is a term of imprisonment for 1 year.

[47] In State v Saini Pinau & others [2013] FJHC 195; HAC012.2013 (18 April 2013); His Lordship Justice Paul Madigan held that:
“The maximum sentence for common assault is one year imprisonment; there is no set tariff and it is therefore left to the discretion of the sentencing tribunal to pass an appropriate sentence. Suspended sentences are not uncommon.”
[48] Similarly, in State v Sokiveta [2013] FJHC 407; HAC12.2013 (8 August 2013); it was held “The tariff for Common Assault is with discretion of court and in most cases the sentence is suspended.”

[49] As such, in the light of the above guiding principles, and taking into consideration the objective seriousness of the offence, and considering the aggravating factors aforementioned, which are common for all offences, and the sole mitigating factor, which is your previous good character, I impose on you a sentence of 6 months’ imprisonment for the first count of Common Assault.

[50] In the circumstances, your sentences are as follows:

Count 1- Common Assault contrary to Section 274 (1) of the Crimes Act – 6 months’ imprisonment.

Count 2 – Sexual Assault contrary to Section 210 (1) (a) of the Crimes Act – 5 years’ imprisonment.

Count 3- Sexual Assault contrary to Section 210 (1) (a) of the Crimes Act – 5 years’ imprisonment.

Count 4 – Rape contrary to Section 207 (1) and 2(b) of the Crimes Act – 15 years’ imprisonment.

I order that all sentences of imprisonment to run concurrently. Therefore, your total term of imprisonment will be 15 years.

[51] Accordingly, I sentence you to a term of 15 years’ imprisonment. Pursuant to the provisions of Section 18 of the Sentencing and Penalties Act, I fix your non-parole period as 12 years’ imprisonment.

[52] Section 24 of the Sentencing and Penalties Act reads thus:

“If an offender is sentenced to a term of imprisonment, any period of time during which the offender was held in custody prior to the trial of the matter or matters shall, unless a court otherwise orders, be regarded by the court as a period of imprisonment already served by the offender.”

[53] You were in arrested for this case and produced in Court on 21 April 2017 and remanded into custody. You were granted bail on 12 May 2017. That is a period of about 1 month. Thereafter, you were again remanded into custody on 9 May 2022, the day on which you were found guilty and convicted for this case. That is a period of over 2 months. Accordingly, you have been in custody for a period of nearly 3 months. The period you were in custody shall be regarded as period of imprisonment already served by you. I hold that a period of 3 months should be considered as served in terms of the provisions of Section 24 of the Sentencing and Penalties Act.

[54] In the result, your final sentence is as follows:

Head Sentence - 15 years’ imprisonment.

Non-parole period - 12 years’ imprisonment.

Considering the time you have spent in remand, the time remaining to be served is as follows:

Head Sentence - 14 years’ and 9 months’ imprisonment.

Non-parole period - 11 years’ and 9 months’ imprisonment.

[55] You have 30 days to appeal to the Court of Appeal if you so wish.

Riyaz Hamza
JUDGE

HIGH COURT OF FIJI

AT LAUTOKA
Dated this 15^th Day of July 2022

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

Solicitors for the Accused : Messrs Jiten Reddy Lawyers, Barristers and Solicitors, Nakasi.