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State v Khaiyum - Sentence [2012] FJHC 1274; Criminal Case 160.2010 (10 August 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No. 160 of 2010

BETWEEN:

STATE

AND:

ABDUL KHAIYUM
Accused

BEFORE: MR. JUSTICE P. K. MADIGAN

COUNSEL: Ms. I. Whippy with Ms V. Prasad for the State
: Mr. H.M. Rabuku for the Accused

Dates of Trial: 3, 6, 7 August 2012
Dates of Sentence: 10 August 2012

SENTENCE

[1] At trial in this Court the accused faced two offences, namely;

FIRST COUNT

Statement of Offence

SEXUAL ASSAULT: contrary to section 210(1)(a) of the Crimes Decree, No. 44 of 2009.

Particulars of Offence

ABDUL KAIYUM, between the 1st of August 2010 and the 31st of August 2010 at Nasinu in the Central Division, unlawfully and indecently assaulted SHAMEEM HUSSEIN.

SECOND COUNT

Statement of Offence

RAPE: Contrary to Section 207(1)(2)(a) of the Crimes Decree, No. 44 of 2009.

Particulars of Offence

ABDUL KAIYUM, between the 1st of August 2010 and the 31st of August 2010 at Nasinu in the Central Division, had carnal knowledge of SHAMEEM HUSSEIN, without his consent.

[2] Three assessors were of the unanimous opinion that the accused was guilty of both offences, and this Court concurring, convicted him of the two offences.

[3] The facts of the case were that the accused is the uncle of the victim aged 37. The victim is handicapped in that he is paralysed down the right hand side of his body. His wife having gone to hospital, the victim was alone on a day in early August 2010. The accused came to his home at about 10 pm and asked to stay the night. The victim allowed him to sleep with him on the only bed in the house. The accused then forcibly removed the clothes of the victim and used lotion to masturbate him after which he anally raped him.

[4] The accused is 48 years old and has a clear record until these convictions. He is married with three adolescent children. He looks after an elderly mother. He is a construction worker. His counsel submits that he still protests his innocence of the crime, yet he maintains that he will continue to feel affection for his nephew the victim. He accepts the Court's verdict but asks for leniency.

[5] The maximum penalty for the offence of rape is life imprisonment, and sentence for rape of adults (opposed to children) is seven years or more (Mohammed Kasim CA 219 1993). This particular rape was aggravated on two counts: (1) It was in breach of trust in an uncle/nephew relationship and (2) The victim was handicapped with reduced capacity to resist.

[6] The accused's claim that he is innocent despite the verdict does not sit well with his submission that he will continue to love his nephew the victim, somebody that he perceives to have made a false serious criminal accusation against him. His claim denotes a clear lack of remorse.

[7] For the rape, I take a staring point of eight years. For the breach of trust and the overbearing of a handicapped victim I add three years to that bringing the sentence to an interim total of eleven years. For his clear record I deduct one year meaning that the accused will serve a total sentence of ten years.

[8] The offence of sexual assault has a maximum term of ten years. No tariff has yet been set for this new offence, but given that the summary offence of indecent assault has a maximum penalty of five years with a tariff of one to four years (Ratu Penioni Rakoto HAA 68 of 2002), the tariff for this more serious offence with double the penalty should be in the range of two to eight years.

[9] Any sexual assault which is invasive will be either aggravated sexual assault under Section 210 (2) and 210(3) or it will be rapes, so the most serious sexual assaults simpliciter will involve contact with genitalia by hand or mouth, and less serious assaults perhaps a "brushing" of breasts, genetalia or buttocks by hand, when the victim is clothed.

[10] This sexual assault (masturbation) is a very serious assault and must attract a starting point of seven years. It is enhanced by 2 years for the aggravation of breach of trust and discounted by one year for the accused's clear record, meaning that for this offence he will serve a total term of eight years.

[11] The sentence for sexual assault will be served concurrently with the rape sentence.

[12] The accused will serve a total sentence for these crimes of ten years. He will serve a minimum of seven years before being eligible for parole.

P. K. MADIGAN
JUDGE

At Suva
10 August, 2012.