IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 38 OF 2018

STATE

v

RAJESH PRASAD

Counsel:			: 	Ms D. Rao for State
				:	Ms S. Devi with K. Marama for Accused

Date Judgment		:	3 May 2019
Date of Sentence		:	6 May 2019

(Name of the victim is suppressed. She is referred to as SW) 

 SENTENCE 

1.	Mr. Rajesh Prasad, you were charged with rape. You pleaded not guilty to the charge and the case proceeded to trial. At the conclusion of the trial, the assessors found you not guilty of rape and also of lesser count of Sexual Assault. 

2.	The Court rejected the opinion of the assessors on the lesser count and found you guilty of Sexual Assault. You were convicted accordingly. 

3.		You now come before this Court for sentence.

4.		The victim is your niece. She was only 11 years of age at the time of the incident. She was sent to your house because her mother had no option but to look after her daughter who was in the hospital. During her short stay at your place, the victim was sleeping with you and your wife in the same bed. When your wife went to the market early in the morning, you approached the victim who was still sleeping and you touched her breast with your hand and touched her naked vagina with your penis. She felt bad and the itch. You warned her not to tell the incident to your wife. The matter was eventually reported to police when the victim relayed the incident to her grandmother later.   

5.		The maximum penalty for Sexual Assault is an imprisonment term of 10 years. 

6.		The tariff for Sexual Assault is settled in Fiji. In State v Epeli Ratabacaca Laca, HAC 252 of 2011, Madigan J set the tariff for the offence between 2 and 8 years imprisonment, the higher tariff being reserved for serious sexual assaults.

7.		In Laca (supra), the court, for sentencing purposes, categorised Sexual Assault into following three groups. 

	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 parts of the offender's body (other than the 	genitalia) with part of the victim's body (other than the genitalia).

8.		Touching the naked genitalia with naked penis falls into the most serious category of sexual assaults mentioned above. 

9.		Sexual assaults on children are most prevalent in Fiji. The society looks upon the courts to come down harsh on sexual offenders because they are concerned of   safety and security of our children. The courts must send a clear message to the society to ensure the safety and well-being of children who are the future of our nation. The negative impact of sexual offences on children is enormous. The deterrence is the main purposes of this sentence.

10.	In selecting the starting point, the courts should have regard to the objective seriousness of the offence and the harm caused to the victim. I am mindful of the guidelines set down in Koroivuki v State [2013] FJCA 15; AAU0018.2010 (5 March 2013) in setting the starting point. 

11.	Considering the gravity of the offence and its impact on the victim, I pick a starting point of 4 years’ imprisonment from the middle range of the tariff for Sexual Assault. 

12.	I will now look at aggravating circumstances of your offending. It is extremely aggravating that you breached the trust of this innocent victim. Victim’s mother trusted you when she sent the victim to your house for care and safe custody. You breached that trust and also the trust that the victim had placed on you as her elderly uncle when she slept with you in the same bed. 

13.	The victim had come to your place because she was in a helpless situation when her mother was in hospital with her daughter. The victim was extremely vulnerable at your place. You took advantage of victim’s naivety and vulnerably to satisfy your lustful demands.

14.	You are 55 years of age and the victim was only 11 years old at the time of the offence. The age difference between you and your niece is more than 40 years. You are a fatherly figure to the victim.

15.	You warned the victim not tell your wife what you had done to her. 

16. 	Taking into consideration all aggravating circumstances mentioned above, I increase your sentence by 3 years to arrive at a sentence of 7 years’ imprisonment.

17.	I carefully considered the mitigating circumstances submitted to this court by your Counsel.

18.	You are 55 years of age and a father of 2 children. You have maintained a clear record as a first offender for the past. You have a heart condition and are currently on medication. You have cooperated with police during investigations. I reduce your sentence by 2 years for mitigating features. 

19.	You were in remand for nearly two months. I deduct further two month for remand period to arrive at a sentence of 4 years and 10 months’ imprisonment. 

20.	Having considered the decision in Tora v State Crim. App. No. AAU 0063 of 2011 (27 February 2015), and your potential for rehabilitation as a first offender, I fix a non-parole period of 4 years. You are eligible to parole after 4 years in prison.

	Summary

21.	You are sentenced to 4 years and 10 months’ imprisonment with a non-parole period of 4 years.

22.	30 days to appeal to the Court of Appeal.

Aruna Aluthge 
Judge

	
At Labasa
	6th May, 2019

	Solicitors: 	Office of the Director of Public Prosecution for State
			Legal Aid Commission for Accused