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State v Chand [2014] FJHC 765; HAC72.2014 (14 October 2014)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 72 OF 2014

STATE

V

SHASHI MAHEN CHAND

Counsels : Mr. Josaia B. Niudamu for the State
Mr. SiddiqFaizalKoyafor the accused

Date of Sentence : 14 October 2014
(Name of the victim is suppressed she is referred to as SSL)

SENTENCE

1. You are charged as follows:
   

Statement of Offence

RAPE: Contrary to Section 207 [1] and [2] [b] and [3] of the Crimes Decree 44 of 2009.

Particulars of Offence

SHASHI MAHEN CHAND on the 28th day of May 2014 at Nadi in the Western Division, penetrated the vagina of SSL, aged 5 years with his finger.

2. On 24th September 2014you pleaded guilty to the charge against you and admitted the Summary of Facts on 2nd October 2014.
   
3. The Summary of Facts submitted by the State Counsel states as follows:
   

On 28th May 2014 at Voivoi, Legalega in NadiShreyaShiwani Lata, 5 years, (hereinafter referred to as the "Complainant") was at her home with her mother, Sharmila Shareen Lata (hereinafter referred to as "PW 2"). On that date, MrShashiMahen Chand, 59 years, unemployed (hereinafter referred to as the "Accused") also resides in his own house with his family in the same compound where the complainant's family live.

At around 4.00 pm to 4.30 pm on the above date, the complainant's mother was cooking using her fire wood stove at her kitchen whilst the complainant was playing alone in the compound. Whilst the complainant was playing the accused called the complainant by referring to her pet name as "Belo". The complainant then went inside the accused house.

It was after sometimes that PW 2 noticed that the complainant is missing since she called out the complainant's name but there was no reply. PW 2 out of curiosity started to make her way to the accused house and she peeped through the door and saw that the complainant was standing beside the bed without her shorts and panty and the accused was sitting on the bed only wearing his underwear. PW 2 saw that the complainant parted her legs and the accused was inserting his hand to the complainant's vagina. PW 2 was shocked with what she witnessed and she then shouted at the complainant and the complainant ran to PW 2 holding her shorts in her hand.

The matter was then later reported to the Namaka Police Station by the complainant's father. The complainant was then taken to Nadi Hospital for medical examination on 28th May 2014 where the findings noted that the complainant hymen is not intact.

The accused was then taken in for questioning by the Police and in his caution interview he admitted that he inserted his right hand index finger to the complainant's vagina.

4. After carefully considering the Plea of you to be unequivocal, this Court found you guilty for one count of Rapeunder Section 207 (1) and (2) (b) and (3) of the Crimes Decree.
   
5. Accused ShashiMahen Chandyou stand convicted for one count of Rape.
   
6. The tariff for rape is well settled since the Judgment of His Lordship Mr. A.H.C.T. Gates in State v Marawa. [2004] FJHC 338; HAC 0016T.2003S (23 April 2004). The starting point of a rape of an adult is 7 years. The tariff is 7 years to 15 years.
   
7. In Mohamed Kasim v The State (unreported) Fiji Court of Appeal Cr. Case No. 14 of 1993; 27 May 1994, The Court of Appeal observed:
   

"We consider that at any rape case without aggravating or mitigating features the starting point for sentencing an adult should be a term of imprisonment of seven years. 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. 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."

8. The tariff for the rape of children differs from that of adults and takes the tariff of 10 to 16 years. It was held by Court of Appeal in Raj v State [2014] FJCA 18; AAU0038.2010 (5.3.2014). Rapes of juveniles (under the age of 18 years) must attract a sentence of at least 10 years and the accepted range of sentences is between 10 and 16 years.
   
9. In State v Mario Tauvoli [2011] FJHC 216, HAC 027.2011 His Lordship Mr. Paul Madigan held that:
   

"Rape of children is a very serious offence in deed and it seems to be very prevalent in Fiji at the time. The legislation had 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."

In this case 42 year step father was sentenced for 13 years with non parole period of 10 years for digital rape of 14 year old step daughter.

10. In State v Anthony [2012] FJHC 1013; HAC 151.2010 His Lordship Mr. PriyanthaNawana held that:
    

"The accused's engagement in his unilateral sexual activity with a little girl who was insensitive to such activity is most abhorrent. This kind of immoral act on a little girl of MB's standing is bound to yield adverse results and psychological trauma, the effect of which is indeed difficult to foresee and asses even by psychologists and sociologists. The depravity of the accused in committing the offence should be denounced to save little children for their own future; and, the men of the accused's caliber should not be allowed to deny the children of their legitimate place in the community. In passing down the sentence in case of this nature, deterrence is therefore, of paramount importance."

11. Defence counsel had drawn the attention of Court to case of State v Spowart [2013] FJHC 352; HAC 89.2011(24 July 2013) Hon. Mr. Justice Paul Madigan had given a sentence of 5 years with non-parole period of 4 years for a 74 years old accused who had inserted his finger to the vagina of his 5 years old victim. The accused was step father of the victim. The learned Judge had stated as follows:
    

"Whereas for a very young offender the Court would make allowances in reduction of sentence, this Court believes that an additional allowance should be made for a very elderly offender. While not detracting from the seriousness of this crime, a normal sentence for this crime could see the accused end his days in prison. Despite his utterly shameful behavior he should still have the prospect of release from prison before his death, given that he has lived 74 years without a previous conviction. For the two years spent already in remand and as an act of mercy given his advanced age I further reduce the 8 year sentence to 5 years and that is the sentence that the accused will serve. He is to serve 4 years of that term before he is eligible for parole.

While the sentence is well outside the accepted range, or "tariff" for rapes of children it is not to be taken as authority to pull the tariff down. It is a truly exceptional sentence in the circumstances and is passed as an act of mercy on a 74 year old who has pleaded guilty, has already served two years and is very remorseful."

12. Considering the above, I commence your sentence at 13 years imprisonment for the charge of Rape.
    
13. Aggravating factors;
    
    • (a) The victim was of very young and tender age,
    • (b) You have breached the trust
    • (c) The age gap between you and the victim is 54 years.
      

Considering all, I increase your sentence by 3 years now the sentence is 16 years imprisonment.

14. Mitigating circumstances:
    
    • (a) You are first offender at the age of 59 years
    • (b) You are suffering from Cerebrovascular, hypertension and umbilical herniaand has to undergo hernia operation and also brain surgery as submitted by your counsel
    • (c) You have shown true remorse.
      

Considering all, I reduce 2 years from your sentence now your sentence is 14 years imprisonment.

15. For your early guilty plea, I deduct 4 years 8 months from your sentence. Now your sentence is 9 years and 4 months.
    
16. You were in remand from 29.5.2014 to 5.9.2014 for a period of 3 months. I deduct that period from above sentence. Now your sentence is 9 years and 1 month.
    
17. This sentence is outside the tariff for the rape of Children. However,considering your age, your medical conditions and true remorse shown, I am inclined to give a sentence outside the tariff.
    
18. Considering Section 18 (1) of the Sentencing and Penalties Decree, I impose 7 years as non- parole period.

Summary

19. You are sentenced to 9 years and 1 month imprisonment. You will not be eligible for parole until you complete serving 7 years of imprisonment.
    
20. Having considered the nature of the relationship you had with the victim, I order a permanent Domestic Violence Restraining Order (DVRO) in place, identifying victim SSL as the protected person. You are hereby ordered not to have any contact with the victim directly or by any other means, unless otherwise directed by this Court.
    
21. 30 days to appeal to Court of Appeal.
    

Sudharshana De Silva
JUDGE

At Lautoka
14th October 2014

Solicitors: Office of the Director of Public Prosecutions for State
SiddiqKoya Lawyers for Accused