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State v Krishna - Sentence [2024] FJHC 313; HAC153.2020 (17 May 2024)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 153 of 2020

STATE
V


ARVEEN KRISHNA


Counsel: Ms. Prakash for the State
Ms. Sharma & Ms. Shafique for the Accused


Dates of Trial: 18th March 2024 to 26th march 2024
Judgment: 5th April 2024
Sentence Hearing: 18th April 2024
Sentence: 17th May 2024


SENTENCE

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

  1. In a judgment delivered on 19th April, 2024 this court found the accused guilty of three counts of Rape, one count of Sexual Assault and convicted him accordingly.
  2. The following facts was proven by prosecution during the trial beyond reasonable doubt:
  3. The victim in August 2020 was 12 years of age a year 7 student of A.D.Patel Primary School who resides with her parents at Malolo in Nadi
  4. On the 17th August, 2020 the victim was on her way to school when she was picked up by the accused an indo Fijian man aged 42 years at the road side near her home in his taxi and convey her to school with his daughter.
  5. The accused after dropping his daughter to school refused to drop the victim to the victim’s school but took her to Wailoaloa beach undressed her and licked her vagina and later penetrated her vagina with his penis at the backseat of his taxi. Later on the same day at about 2.45 pm the accused dropped the victim near her home.
  6. Again on the 24th of August 2020 the victim was with the accused daughter inside his taxi on their way to school when the accused dropped her daughter off at her school but did not dropped the victim at the victim’s school hence he took her to Kerebula parked at remote place and undressed her at the backseat of his taxi and penetrated her vagina with his penis. Later she dropped her off close to a canteen near her home.
  7. Again on the 28th of August 2020 she was again travelling on the accused vehicle going to school. On this day she stated that it was the accused, his son, his daughter and herself. His sons name is Kavil Krishna. The accused dropped off his son and daughter and refused to drop the victim at her school but again took her to Kerebula where he again undressed the victim and penetrated her vagina with his penis. The victim was later dropped off near her residence later in the afternoon.
  8. The victim than made up her mind to inform her mother on what has happened to her as the neigbhours have already what was happening between the accused and the victim. She told her mother that the accused had sexual intercourse with her three times.
  9. The matter was reported to police and the victim was taken for medical examination on the 12th of September 2020 and according to the examining doctor the hymen was not intact Hence, there wasn’t any seminal fluid or any other lacerations or any bruising noted. According to the doctor it was not common for the complainant at such an age for her hymen not to be intact. Thus, the accused was arrested, caution interviewed and charged for the three counts of rape and two counts of Sexual assault
  10. The State Counsel filed written sentence submissions and the defence counsel filed mitigation for which this court is grateful.
  11. The following personal details and mitigation was submitted by the counsel for the accused:
  12. The accused was 42 years old at the time of the offending; First offender; married with three children and resides with his family; He is employed as an Electrician. Earns $500 per week; supports the family; his wife is unemployed. He is the sole bread winner in the family. The children require the care and attention of the accused. Accused is a religious person who is supportive towards any religious event in his community.

I accept in accordance with the Supreme Court decision in Anand Abhay Raj –vs.- The State, CAV 0003 of 2014 (20 August, 2014) that the personal circumstances of an accused person has little mitigatory value in cases of sexual nature.

  1. Hence the court also noted that there was no Victim Impact Statement filed by the State however, the court is fully aware of the impact of the crimes on the victim was traumatic and it was severe.
  2. Section 4(1) of the Sentencing and Penalties Act No. 42 of 2009 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.

  1. 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.
  2. Arveen Krishna, I will first deal with the three (3) counts of Rape that you have been found guilty and convicted, in terms of Section 207 (1) & (2) (b) of the Crimes Act No. 44 of 2009. The offence of Rape in terms of Section 207(1) of the Crimes Act carries a maximum penalty of imprisonment for life.
  3. 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.”

  1. 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”.

  1. 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.”

  1. 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 especially 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.

  1. 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 (20th 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.”

  1. 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.”

  1. In the light of the above guiding principles, and taking into consideration the objective seriousness of the offence, I commence your sentence at 12 years imprisonment for the count of Rape.
  2. The aggravating factors are as follows:

(i) The victim was vulnerable, alone and unsuspecting that you might took advantage of this and sexually abused the victim in your vehicle which was under your control.

(ii) Abuse of trust. The victim is related to you through her father’s side and calls you “Anna” meaning brother. You have breach the said trust by instead of protecting and ensuring the safety of the victim whilst conveying her to school you did the most horrendous act that a right minded person would do by sexually abusing the victim on three separate occasions.

(iii) There was a large disparity in age between you and the victim. The victim was 12 years where as your age was 42years. There was an age gap of 30 years between you and victim. The age difference is also substantial.

(iv) You took advantage of the victim’s vulnerability, helplessness and naivety.

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

(vi) 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 victim at a time you found her alone.

(vi) The victim has been emotionally and psychologically traumatized

(vi) You are now convicted of multiple offending.

  1. Considering the aforementioned aggravating factors, I increase your sentence by a further 6 years. Now your sentence is 18 years imprisonment for the count of Rape.
  2. Arveen Krishna you are now 42 years of age. You are married and residing with your wife, children with your family at Malolo in Nadi. You are a electrician earning $500.00 a week and sole bread winner of your family.
  3. It is submitted that your children are financially dependent on you as your wife is unemployed.
  4. Unfortunately, the above are all personal circumstances and cannot be considered as mitigating circumstances.
  5. As per the Antecedent Report filed, it is noted that you are a first offender. Therefore, Court considers you as a person of previous good character
  6. Your Counsel has submitted that you are now remorseful of your actions. However, this Court cannot consider your belated show of remorse as genuine.
  7. 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 16 years imprisonment for the count of Rape.
  8. Arveen Krishna you have been found guilty and convicted of one count of Sexual Assault pursuant of Section 210 (1) (a) of the Crimes Act (Counts 2 and 3).
  9. The offence of Sexual Assault in terms of Section 210(1) of the Crimes Act carries a maximum penalty of 10 years imprisonment.
  10. 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.
  11. 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.”
  12. 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).”

  1. In this case, as per Count 2 it has been proved that you unlawfully and indecently assaulted the complainant, by licking the victim’s vagina for about 5 minutes therefore, in my opinion, the offences for the two counts should be categorized under category 2 above.
  2. 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.
  3. Considering the aggravating factors mentioned above, which are common for all offences, and the sole mitigating factor, which is your previous good character, I impose 5 years imprisonment for the second and count of Sexual Assault.

40. In the circumstances, your sentences are as follows:

Count 1- Rape contrary to Section 207 (1) and (2) (a) of the Crimes Act – 16 years imprisonment

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

Count 3 – Rape contrary to Section 207 (1) and 2(a) of the Crimes Act – 16 years’ imprisonment.

Count 5 – Rape contrary to Section 207 (1) and 2(a) of the Crimes Act – 16 years’ imprisonment. I order that all sentences of imprisonment to run concurrently. Therefore, your total term of imprisonment will be 16 years.

  1. Accordingly, I sentence you to a term of 16 years’ imprisonment. Pursuant to the provisions of Section 18 of the Sentencing and Penalties Act, I fix your non-parole period as 14 years’ imprisonment.
  2. 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.”

  1. You were arrested in this case and produced in Nadi Magistrates Court on 17th of September 2020 and remanded into custody. You were granted bail on 30th of September 2020 in Lautoka High Court. Further your bail was revoked and you were remanded on the 11th of November 2020.Again you were granted bail on the 22nd of December 2020.You were remanded again after you were found guilty and convicted for this case. In total a period 2 months and 21 days altogether you have spent in remand. 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.
  2. Your sentence is as follows:

Head Sentence – 16 years imprisonment.

Non-parole period - 14 years imprisonment.

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

Head Sentence – 15 years and 9 months imprisonment.

Non-parole period - 13 years and 9 months imprisonment.



45. You have 30 days to appeal to the Court of Appeal if you so wish.


.................................................
Sekonaia V. Vodokisolomone
Acting Puisne Judge


AT LAUTOKA
Dated this 17th Day of May, 2024

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