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State v Naidu - Sentence [2022] FJHC 570; HAC204.2018 (6 September 2022)

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

CRIMINAL CASE NO: HAC 204 of 2018

STATE

V

JAMES ANTHONY NAIDU

Counsel : Mr. Alvin Singh with Ms. Sheenal Swastika for the State
Ms. Anishini Chand for the Accused

Dates of Trial : 29 & 30 June and 1 July 2022

Closing Submissions : 13 July 2022

Judgment : 3 August 2022
Sentence Hearing : 18 August 2022
Sentence : 6 September 2022

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

SENTENCE

[1] James Anthony Naidu, as per the Amended Information filed by the Director of Public Prosecutions (DPP), you were charged with the following offences:

FIRST COUNT

Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (c) of the Crimes Act.

Particulars of Offence

JAMES ANTHONY NAIDU, between the 1^st day of July 2014 and 31^st day of July 2014, at Lautoka, in the Western Division, penetrated the mouth of DD, with his penis, without her consent.

SECOND COUNT

Statement of Offence

INDECENT ASSAULT: Contrary to Section 212 (1) of the Crimes Act.

Particulars of Offence

JAMES ANTHONY NAIDU, between the 1^st day of July 2014 and 31^st day of July 2014, at Lautoka, in the Western Division, unlawfully and indecently assaulted DD.

[2] You pleaded not guilty to the above mentioned charges and the matter proceeded to trial. The ensuing trial was held over 3 days. The prosecution in support of their case, called the complainant, who was the sole prosecution witness. You testified on your own behalf and also called your de-facto partner, Suluia Lotita, to testify in support of your case.

[3] At the conclusion of the evidence and having reviewed the said evidence, this Court found you guilty and convicted you of the two charges.

[4] It was proved during the trial that between the 1 July 2014 and 31 July 2014, at Lautoka, you penetrated the mouth of the complainant, with your penis, without her consent and that you knew or believed that the complainant was not consenting, or you were reckless as to whether or not she was consenting (Count 1).

[5] It was also proved during the trial that between the 1 July 2014 and 31 July 2014, at Lautoka, you unlawfully and indecently assaulted the complainant, by fondling her breasts, with your hands (Count 2).

[6] The complainant testified that her date of birth was 1 May 1995. Therefore, at the time you committed these offences on her she was 19 years of age, and still a teenager. At the time she testified in Court she was 27 years of age.

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

[8] 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.

[9] Section 4(1) of the Sentencing and Penalties Act No. 42 of 2009 (“Sentencing and Penalties Act”) sets out the purposes for which sentencing may be imposed by a Court. The purposes 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.

[10] I have duly considered the above factors in determining the sentence to be imposed on you, which is primarily to punish and 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.

[11] The offence of Rape in terms of Section 207(1) of the Crimes Act carries a maximum penalty of imprisonment for life.

[12] 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.”

[13] In The State v Lasaro Turagabeci and Others (unreported) Suva High Court Crim. Case No. HAC0008.1996S; Pain J 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.”

[14] In the case of State v. Marawa [2004] FJHC 338; HAC 16 of 2003S (23 April 2004); His Lordship Justice 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.”

[15] It was further held in Mohammed Kasim v. The State (supra):

“.......We consider that in any rape case without aggravating or mitigating features the starting point for sentencing an adult should be a term of imprisonment of seven years........We must stress, however, that the particular circumstances of a case will mean that there are cases where the proper sentence may be substantially higher or substantially lower than that starting point.”

[16] 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.”

[17] It is settled that the tariff for a rape of an adult victim is a term of imprisonment between 7 years and 15 years-As per Gates J in State v. Marawa (supra) and Fernando J in State v. Naicker [2015] FJHC 537; HAC 279 of 2013 (15 July 2015).

[18] 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.”

[19] In the light of the above guiding principles, and taking into consideration the objective seriousness of the offence, I commence your sentence at 7 years for the first count of Rape.

[20] The aggravating factors are as follows:

(i) You were a neighbour of the complainant at Ram Asre. The complainant said that back in 2014 she had known you for 2 or 3 years. Thus, the complainant had trusted you. In the circumstances, 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 19 years of age, at the time you committed these offences on her. At the time of the offending you were nearly 54 years of age. Therefore, you were over 35 years older than the complainant.

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

(iv) I find that there was some degree of planning and premeditation on your part in committing these offences. As the prosecution has submitted you had tricked the complainant into getting into your vehicle on the evening of the alleged incident, as you had wanted her to be alone in your company.

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

(vi) You are now convicted of multiple offending.

[21] James Anthony Naidu, you are now 62 years of age [your date of birth being 20 August 1960]. You are in a de-facto relationship with Suluia Lotita and you have two sons together aged 7 and 11 years. You also have two adult children from a previous marriage. It is the opinion of this Court that these are personal circumstances and cannot be considered as mitigating circumstances.

[22] You cannot be considered as a person of previous good character. You had been found guilty, convicted and sentenced to 11 years and 11 months imprisonment, with a non-parole period of 9 years, by the Lautoka High Court on 4 November 2016 (Lautoka High Court Criminal Case No. HAC 120 of 2015).

[23] Your Learned Counsel has submitted to Court that you had co-operated with the Police. She has submitted that you hold permanent residency status in New Zealand. It is stated that you were cautioned interviewed on 15 May 2015 and charged over a month later on 16 July 2015. It is further submitted that you had ample opportunity to flee the country after your caution interview, but that you chose to stay back and face these charges against you. However, this Court cannot consider these circumstances as mitigating circumstances.

[24] Considering the aforementioned aggravating factors, I increase your sentence by a further 5 years. I find no mitigating circumstances in this case to grant you any discount. As such, your sentence is 12 years for Count 1.

[25] I will now deal with the offence of Indecent Assault (Count 2). The offence of Indecent Assault in terms of Section 212 of the Crimes Act carries a maximum penalty of 5 years imprisonment.

[26] Her Ladyship Madam Justice Shameem in Ratu Penioni Rokota v. State [2002] FJHC 168; HAA 68J of 2002S (23 August 2002); held that the applicable tariff for the offence of Indecent Assault range from 12 months to 4 years imprisonment. Madam Justice Shameem said:

“..... Sentences for indecent assault range from 12 months imprisonment to 4 years. The gravity of the offence will determine the starting point for the sentence. The indecent assault of small children reflects on the gravity of the offence. The nature of the assault, whether it was penetrative, whether gratuitous violence was used, whether weapons or other implements were used and the length of time over which the assaults were perpetrated, all reflect on the gravity of the offence. Mitigating factors might be the previous good character of the accused, honest attempts to effect apology and reparation to the victim, and a prompt plea of guilty which saves the victim the trauma of giving evidence.

These are the general principles which affect sentencing under section 154 of the Penal Code. Generally, the sentence will fall within the tariff, although in particularly serious cases, a five year sentence may be appropriate. A non-custodial sentence will only be appropriate in cases where the ages of the victim and the accused are similar, and the assault of a non-penetrative and fleeting type. Because of the vast differences in different types of indecent assault, it is difficult to refer to any more specific guidelines than these.”

[27] This was followed by His Lordship Justice Vinsent Perera in State v. Mohammed Zubair [2017] FJHC 895; HAC 425 of 2016 (24 November 2017).

[28] Accordingly, considering the objective seriousness of the offence and taking into consideration the nature and the gravity of the offence and your culpability and degree of responsibility for the offence, and also taking into consideration the aggravating factors, I impose on you a sentence of 2 years’ imprisonment for the second count of Indecent Assault.

[29] The Learned Counsel for the State has submitted to Court to declare you as a habitual offender in terms of Sections 10 and 11 of the Sentencing and Penalties Act. However, I agree with the submission made by Learned Counsel for the Defence that this Section would be applicable to a person who habitually commits offences described in Section 10 of the Act and not to you, since you were charged in the Magistrate’s Court at or about the same time for two criminal cases in the year 2015, which were later transferred to the Lautoka High Court – namely Lautoka High Court Criminal Case No. HAC 120 of 2015 and the instant case.

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

Count 1- Rape contrary to Section 207 (1) and (2) (a) of the Crimes Act – 12 years’ imprisonment.

Count 2- Indecent Assault, contrary to Section 207 (1) and (2) (a) of the Crimes Act - 2 years’ imprisonment.

I order that both sentences of imprisonment to run concurrently. Therefore, your total term of imprisonment will be 12 years.

[31] Accordingly, I sentence you to a term of 12 years imprisonment. Pursuant to the provisions of Section 18 of the Sentencing and Penalties Act, I order that you are not eligible to be released on parole until you serve 10 years of that sentence.

[32] The final issue for consideration is whether this sentence I am imposing on you today should be concurrent or consecutive to the sentence imposed on you by the High Court of Lautoka, on 4 November 2016, and which you are currently serving.

[33] Your Learned Counsel has submitted that you were initially charged for this offence on 15 July 2015 and produced in Court on 16 July 2015. It is said, that in this matter you had been initially charged for Indecent Assault and continued to make an appearance at the Magistrate’s Court of Lautoka for almost 3 years. In 2018, the Prosecution had decided to amend the charge from Indecent Assault to Rape. This matter had been transferred to the Lautoka High Court only on 20 November 2018, which was nearly 4 years after the date of offending.

[34] Therefore, considering the above factors and also the fact that you are being sentenced today for an offence which was committed over 8 years ago, and considering your personal circumstances, especially your current age, I am of the opinion that it is just and reasonable that this sentence be made concurrent to the sentence you are currently serving.

[35] Accordingly, your sentence of 12 years imprisonment, with a non-parole period of 10 years, will commence from today and be concurrent to the sentence you are serving in Lautoka High Court Criminal Case No. HAC 120 of 2015.

[36] 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 6^th Day of September 2022

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

Solicitor for the Accused: Anishini Chand Lawyers, Barristers & Solicitors, Lautoka.