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State v Chand - Sentence [2020] FJHC 1088; HAC123.2019 (16 December 2020)

IN THE HIGH COURT OF FIJI

AT SUVA

[CRIMINAL JURISDICTION]

CRIMINAL CASE NO. 123 OF 2019

STATE

V

RAVINESH CHAND

Counsel: Ms S Sharma for the State

Mr I Khan for the Accused

Date of Hearing: 7, 9 – 10, 14 - 15 December 2020

Date of Summing Up : 15 December 2020

Date of Judgment: 15 December 2020

Date of Sentence: 16 December 2020

SENTENCE

[1] The offender was found guilty of one count of sexual assault and three counts of rape after trial. The offences form part of one transaction that occurred on 21 March 2019 at Luvuluvu Road, Nausori.

[2] The victim is a child. The offender is a pastor of the Hindi Christian Fellowship Four Square Church located at Nadali, Nausori. The victim attended that church with her mother and siblings.

[3] On 21 March 2019, the victim’s mother allowed her to accompany the offender to buy her birthday cake upon the offender’s request. The offender drove the victim to an isolated spot and then had sexual intercourse with her without her consent. He also sexually assaulted her, forced her to perform oral sex on him and digitally penetrated her using his finger. He then took her to a cake shop, gave her money to buy a cake and dropped her at his church for her to celebrate her birthday with other church members. He later returned to the church in the evening with his family to participate in the celebration.

[4] The offender was the victim’s spiritual leader. He was in a position of moral authority over the victim as her pastor. Instead of providing the victim with spiritual guidance, he made her an object of his lust. He had no respect for her dignity. His conduct is disgraceful as a spiritual leader. It is the court’s duty to denounce the conduct of the offender and send a clear message to the religious leaders in the community that sexual abuse of girls and boys by them will not be tolerated.

[5] The maximum penalty for sexual assault is 10 years imprisonment. The maximum penalty for rape is life imprisonment. The tariff for rape of a child range from 11-20 years imprisonment.

[6] I consider the following as the aggravating factors:

• The victim was vulnerable due to being a female child.
• The offender breached the victim’s trust as her pastor.
• The victim suffered physical pain and humiliation during the incident.
• The victim was emotionally affected by the incident. She contemplated killing herself.
  

[7] Counsel for the offender has advanced the following mitigation. The offender is 38 years old and married with two children aged 9 and 5. The youngest child has special needs. His family is financially depended on him. He drives a taxi for a living.

[8] The offender has one previous conviction for personation in 2007. However, that conviction is irrelevant and I consider the offender’s good character as a mitigating factor. But I am unable to give undiminished weight to the offender’s family circumstances. The offender is the author of his own demise with little expression of remorse or responsibility for his crime.

[9] I consider an aggregate sentence will best reflect the overall criminality involved in this case. I pitch the overall criminality of the offender to fall in the middle scale of the tariff. I make a downward adjustment of 2 months in sentence to reflect the offender’s remand period.

[10] The offender is sentenced to an aggregate term of 14 years’ imprisonment for one count of sexual assault and three counts of rape with non-parole period of 11 years.

[11] The sentence shall commence from the date the offender is apprehend.

. ...........................................
Hon. Mr Justice Daniel Goundar

Solicitors:
Office of the Director of Public Prosecutions for the State
Iqbal Khan & Associates for the Accused