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State v Chand - Sentence [2015] FJHC 627; HAC038.2014LAB (27 August 2015)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION
CRIMINAL CASE NO: HAC 038 OF 2014LAB

STATE

V

RITESH VIKASH CHAND

Counsels : Ms. A. Vavadakua for State
Mr. M. Fesaitu for Accused

Hearings : 19 and 20 August, 2015
Summing Up : 21 August, 2015
Judgment : 21 August, 2015
Sentence : 27 August, 2015

SENTENCE

1. In a judgment delivered on 21 August 2015, the court found you guilty and convicted you, on the following information:

Statement of Offence

RAPE: Contrary to section 207 (1) and (2) (a) of the Crimes Decree no. 44 of 2009.

Particulars of Offence

RITESH VIKASH CHAND on the 17th day of April 2014 at Labasa in the Northern Division had carnal knowledge of M.T. without M.T.'s consent.

2. The brief facts were as follows. On 17 April 2014, you were 20 years old, and single. The female complainant was 14 years old, and mentally slow. You met the complainant while she was playing with friends. You took her to a nearby vacant house. You gave her your mobile phone, wherein she started to play the games therein, and thereby distracted her. You then took off all her clothes. You then penetrated her vagina with your penis, without her consent, and you knew she was not consenting to the same, because she was mentally slow. You were later tried in the High Court and convicted of raping her.

3. The maximum sentence for the offence of "rape" is life imprisonment. For the rape of a juvenile, the tariff is now a sentence between 10 to 16 years imprisonment: see Anand Abhay Raj v The State, Criminal Appeal CAV 0003 of 2014, Supreme Court of Fiji; per His Lordship the Hon. Chief Justice. Of course, the final sentence will depend on the mitigating and aggravating factors.

4. The aggravating factors in this case were as follows:

(i) The complainant was a 14 year old juvenile. She was mentally slow. You took advantage of her vulnerability, by taking her to a nearby vacant house, gave her your mobile phone to win her trust, then you proceeded to do the unthinkable by raping her;

(ii) In committing the offence against the complainant, you violated her human dignity and you had no sympathy whatsoever to the fact that she was a vulnerable person, as she was mentally slow;

(iii) You showed no remorse towards the complainant throughout the trial.

5. The mitigation factors were as follows:

(i) At the age of 22 years, this was your first offence;

(ii) This case had been hanging over your head for 1 year 4 months, and that was a punishment in itself:

(iii) You had been remanded in custody for 1 month.

6. I start with 10 years, I add 2 years for the aggravating factors making a total of 12 years. I deduct 1 month for time already served while been remanded in custody, leaving a balance of 11 years 11 months. I deduct a further 1 year 11 months for the other mitigating factors, leaving a balance of 10 years imprisonment.

7. Mr. Ritesh Vikash Chand, for raping the 14 year old complainant at Labasa in the Northern Division, I sentence you to 10 years imprisonment, with a no-parole period of 7 years imprisonment, effective forthwith.

8. The name of the complainant is permanently suppressed to protect her privacy.

Salesi Temo

JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Labasa

Solicitor for the Accused : Office of the Legal Aid Commission, Labasa