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State v Singh - Sentence [2024] FJHC 287; HAC90.2019 (6 May 2024)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 90 OF 2019

STATE
v
SHYMAL SINGH

Counsel: Mr M. Rafiq for State
Mr A. Reddy for Defence

Date of Judgment: 04 April 2024
Dates Sentence Hearing: 25, 29 April 2024
Date of Sentence: 06 May 2024

SENTENCE

1. Mr Shymal Singh, you were convicted after trial of three counts of Rape on the following information filed by the Director of Public Prosecutions:
   

FIRST COUNT

Statement of Offence

RAPE: Contrary to section 207 (1) and (2) (a) of the Crimes Act 2009.

Particulars of Offence

SHYMAL SINGH on the 13th day of April 2019 at Nadi in the Western Division penetrated the vagina of MAMTA with his penis, without the consent of the said MAMTA.

SECOND COUNT

Statement of Offence

RAPE: Contrary to section 207 (1) and (2) (b) of the Crimes Act 2009.

Particulars of Offence

SHYMAL SINGH on the 13th day of April 2019 at Nadi in the Western Division penetrated the vagina of MAMTA with a sex toy namely a dildo, without the consent of the said MAMTA.

THIRD COUNT

Statement of Offence

RAPE: Contrary to section 207 (1) and (2) (a) of the Crimes Act 2009.

Particulars of Offence

SHYMAL SINGH on the 13th day of April 2019, at Nadi in the Western Division penetrated the vagina of MAMTA with his penis, without the consent of the said MAMTA.

2. The victim, a beautician by profession, had been in a de-facto relationship with you since 2017 until the incident occurred in 2019. In 2019, you worked for Kokomo Island Resorts as the Chief Engineer while your partner was residing in a rented apartment in Nadi. She wanted you to be home to celebrate her birthday on 12 April 2019. You declined saying that you were busy and postponed the home visit until 19 April 2019, which is the birthday of your pet dog. Since you were not able to come home to celebrate her birthday, one of her friends planned a day out for her in a hotel. When you heard this, you got angry. You later reluctantly agreed for her to go out on the condition that she come back home at night. When she went out, you were constantly monitoring her over the phone. You started accusing her when you realised that two male friends had also joined the party. You ordered her to leave the hotel immediately by midnight. You threatened to come home the following day to deal with her in Nadi.

3. The following day, you arranged a special flight leave and arrived home from Kokomo Island. Upon your arrival home, you started yelling at the victim and told her to pack up her clothes and leave home. She went to her room and closed the door to take a nap. In the evening, you started drinking beer and went out twice. She locked the room and went off to sleep as she wasn’t feeling well. At night, you forced open the door and entered her room. You covered her mouth when she started screaming. You then pushed her on the bed and had sexual intercourse with her forcefully. In that process, she got bruises. When she pushed you away, you went to your room.
   
4. You entered her room again with a dildo, a sex toy, and inserted it inside her vagina at high speed while she was yelling in pain. When she pushed your hands the dildo fell on the bed. You then penetrated her vagina with your penis forcefully without her consent. She reported the matter to police and the police took her to the hospital where she was medically examined.
   

5. The maximum sentence for Rape is life imprisonment. The sentencing tariff for adult rape ranges from 7 years to 15 years imprisonment^[1]. The starting point for an adult rape is at least seven years’ imprisonment. However, there are cases where the proper sentence may be substantially higher or substantially lower than that starting point, depending on the circumstances of the case^[2]

6. In selecting a sentence that fits your offence, I must have regard to the proportionality principle enshrined in the Constitution and the Sentencing and Penalties Act 2009 (SPA). I would also have regard to the maximum penalty prescribed for the offence, the current sentencing practice and the applicable sentencing guidelines issued by the courts. Having considered the seriousness of the offence and the harm caused to the victim, I would select the appropriate starting point. The final sentence will be determined after making appropriate adjustments for the aggravating and mitigating circumstances.
   
7. Sexual offences in domestic setting are on the rise in Fiji. The courts have emphasised that the increasing prevalence of these offences in our community calls for deterrent sentences. The courts must see that the sentences are such as to operate as a powerful deterrent factor to prevent the commission of such offences. The offenders must receive condign punishment to mark society’s outrage and to denounce domestic violence and sexual abuse in our society.
   
8. All the convictions entered against you are founded on the same facts that form a series of offences of similar character. I consider it appropriate to impose an aggregate sentence of imprisonment for all the offences under Section 17 of the Sentencing and Penalties Act.
   
9. Your Counsel argues that Section 15(2) of the Sentencing and Penalties Act gives an unfettered discretion to the Court to impose any sentence listed in Section 15 (1) of the said Act bearing in mind that that discretion must be exercise in a judicial manner. He suggests that I follow the Instinctive Synthesis approach instead of two-tiered approach to hand down a lenient sentence to you.
   
10. Recent decisions of the High Court have drawn attention to a division amongst its members over the merits of two opposing sentencing methodologies: “two-tiered“ and “instinctive synthesis“. This debate is evident in the recent decisions of Fiji Independent Commission Against Corruption (FICAC) v Vijendra Prakash^[3]; Fiji Independent Commission Against Corruption (FICAC) v Matanitobua^[4]; Fiji Independent Commission Against Corruption (FICAC) v Nawaikula - Sentence^[5] ; and in Australia, Wong v The Queen; Leung v The Queen^[6] and Cameron v The Queen^[7].
    
11. The current debate, yet to be resolved by the appellate courts, has caused much confusion and concern as to what precisely is meant by the term instinctive synthesis, and how and when it should be applied. The debate also raises broader issues, such as the importance of judicial discretion in the sentencing process, and how best to accommodate different, and often competing, sentencing philosophies (such as retribution, rehabilitation and community protection). There are many factors to consider in sentencing, including the objective features of the crime and the subjective features of the offender (particularly factors identified as either aggravating or mitigating). Should the sentencing judge or magistrate reduce, in a single step, the multiple factors relevant to the sentencing decision to a single value? Is this what instinctive synthesis means? If so, what are the implications of such an approach in terms of judicial accountability and consistency?
    
12. Alternatively, is the process for determining sentence amenable to a staged (two-tiered) approach where weight is given to certain specific factors first (objective seriousness of the offence and the harm caused to the victim), and further weight is given to other specified subjective facts (or factors) which assist in fine-tuning or adjusting the sentence (usually upward or downward) to produce the final sentence? What are the problems, if any, associated with a sequential approach of this kind? Is the instinctive synthesis approach really to be favoured and the two-tiered approach likely to produce error?
    
13. The SPA does not provide specific guidelines as to what methodology that should be adopted by the sentencing court in computing the sentence. The Supreme Court in Qurai v The State^[8] in paragraph [48] observed that subject to the current sentencing practice and terms of any applicable guideline judgment, the SPA leaves the sentencing judge with a degree of flexibility as to the sentencing methodology, which might often depend on the complexity or otherwise of every case.
    
14. I agree that instinctive synthesis approach gives the sentencer a wide discretion in sentencing. However, the SPA in Section 4(2)(b) specifically provides that in sentencing offenders, a court must have regard to current sentencing practice and the terms of any applicable guideline judgment. The Supreme Court in Qurai at paragraph 49 described the methodology that is currently used in the courts in Fiji as being the two-tiered process. The Court observed:
    

In Fiji, the courts by and large adopt a two-tiered process of reasoning where the sentencing judge or magistrate first considers the objective circumstances of the offence (factors going to the gravity of the crime itself) in order to gauge an appreciation of the seriousness of the offence (tier one), and then considers all the subjective circumstances of the offender (often a bundle of aggravating and mitigating factors relating to the offender rather than the offence) (tier two), before deriving the sentence to be imposed.

15. In Qurai the Supreme Court further discussed the merits and demerits of the two tiered process and observed in paragraph [51] that:
    

In my considered view, it is precisely because of the complexity of the sentencing process and the variability of the circumstances of each case that judges are given by the Sentencing and Penalties Decree a broad discretion to determine sentence. In most instances there is no single correct penalty but a range within which a sentence may be regarded as appropriate, hence mathematical precision is not insisted upon. But this does not mean that proportionality, a mathematical concept, has no role to play in determining an appropriate sentence. The two-tiered and instinctive synthesis approaches both require the making of value judgments, assessments, comparisons (treating like cases alike and unlike cases differently) and the final balancing of a diverse range of considerations that are integral to the sentencing process. The two-tiered process, when properly adopted, has the advantage of providing consistency of approach in sentencing and promoting and enhancing judicial accountability, although some cases may not be amenable to a sequential form of reasoning than others, and some judges may find the two-tiered sentencing methodology more useful than other judges.

16. Although the two–tiered approach involves a degree of mathematical precision, I would prefer to adopt the two-tiered approach given that it promotes judicial accountability and consistency. On top of those it represents the current sentencing practice in Fiji which pursuant to Section 4(2) (b) of the SPA must be taken into consideration in sentencing.
    
17. Having taken into consideration the seriousness of the offence and the harm caused to the victim, I select a starting point of 8 years for the aggregate sentence from the lower end of the tariff.
    
18. The counsel from both sides have filed sentencing/ mitigation submissions for which I am grateful. The following aggravating and mitigation factors were identified in the offence and the offender which will be used to make appropriate adjustments to your sentence:
    

Aggravating Factors:

(a). You committed these offences on a vulnerable victim. She was alone at home in a physically weak health condition. You were strong and a person in authority in a union where she was financially and socially dependent on you. She had to seek permission for socialising and spending. Via CCTV cameras, hidden and openly installed at home, you maintained constant surveillance on her movements and conversations. She was virtually a hostage at her own home.

(b). You assaulted the victim not only sexually but also physically when you used force on her by pushing, stripping her partially naked and causing pain and injuries. You forcefully used a sex toy on her vagina at a high speed.

(c) You committed this offence under the influence of alcohol. The Court accepted that you drank nine bottles of beer before the commission of the offence.

(d) You prevented the victim from seeking help by blocking her mouth when she was yelling before the incident. When you left home after the incident, you threatened her that you would kill her and bury her inside the house.

(e). It was evident that you were highly manipulative after the commission of the offence. You did everything to suppress the truth by blaming her that she was in an intimate relationship with another man and that she was associated with a ‘bad girl’, without reasonable basis. All these things were done to justify your conduct and bolster your defence. You have not shown any remorse after the incident. You failed to take the victim to a doctor despite her request and took her instead for lunch and shopping to please her. You illegally listened to telephone conversations and suppressed the real source of evidence from police investigators.

(f) You were in a domestic relationship with the victim. You breached the trust and violated the victim’s sexual autonomy and sanctity of the partnership when you were required to provide her care and protection as your trusted partner.

Mitigating Factors:

(a). You are now 32 years old. At the time of the charge, you were 27 years old. You live with your current partner and have a three-month-old daughter. I was informed that you are the sole breadwinner of your family, and your elderly parents are financially dependent on you.

(b). I accept that you are a young offender and you, having learnt a lesson from your past conduct, you are now in a different stage of life, perhaps wiser and more mature.

(c). Another important mitigating factor of course is that you are a first offender. You have no previous convictions. You have maintained a clear record until you committed these offences.

(d). Your Counsel informed that you always cooperated with the police and their investigations. However, I do not 100% agree with that because of your manipulative conduct after the incident. You also failed to appear at the police station on the day assigned to you.

(e). You held a prestigious position as the Director of Operations for the Kokomo Island Resort as the first local person to be appointed to that position, a great achievement for a local by the age of 32 years. Your Counsel informed me that you command great respect in the community and at the workplace. The affidavit of Mr Sheridan who is your work colleague confirms that you maintained good qualities as a trusted worker. I accept that you have rendered a yeoman service and still have a lot to offer to the tourist industry and the Fijian community.

(f). I accept that the post-charge delay should be considered as a mitigation factor. You were arrested in April 2019 and charged in October 2019 to be convicted on 4^th April 2024. There was a substantial post-charge delay of approximately 5 years due to no fault of your own doing.

19. I add 2 years and 2 months to the starting point of 8 years for the above-mentioned list of aggravating factors to arrive at an interim sentence of 10 years and 2 months imprisonment for all three offences. I would reduce two years for the mitigating factors to arrive at an aggregate sentence of 8 years and 2 months imprisonment for all three offences.
    
20. According to the State, you had spent only two weeks in remand before the conviction. After the conviction, you have spent approximately one month in remand. I have considered your remand period as part of your sentence already served and deduct 2 months to arrive at a final aggregate sentence of 8 years imprisonment.
    
21. You are relatively young and a first offender. Taking into consideration your age, potential for rehabilitation, the gravity of the offences and the impact of the offences on society, I would impose a non-parole period of 6 years.
    
22. Summary
    

Mr. Shymal Singh, you are sentenced to an imprisonment term of eight (08) years with a non-parole period of six (06) years. You are eligible for parole after you have served six (6) years in the correction facility.

23. You have 30 days to appeal to the Court of Appeal.
    

Aruna Aluthge
Judge

06 May 2024
At Lautoka

Solicitors:
Office of the Director of Public Prosecutions for State
Reddy & Nandan Lawyers for Defence

^[1] Rokolaba v State [2018] FJSC 12 (26 April 2018)

^[2] Kasim v State [1994] FJCA 25; Aau0021j.93s (27 May 1994) State v Marawa [2004] FJHC 338)].; Rokolaba v State [2018] FJSC 12 (26 April 2018)
^[3] HACD 008of 2022S (03 February 2023)
^[4] [2022] FJHC 514; HACD004.2022S (15 August 2022)
^[5] [2022] FJHC 236; HACD005.2022S (20 May 2022)
^[6] (2002) 76 ALJR 79.
^[7] (2002) 76 ALJR 382

^[8] (CAV 24 of 2014; 20 August 2015)