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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
[CRIMINAL JURISDICTION]
CRIMINAL CASE NO: HAC 304 of 2018
STATE
V
SEGRAN CHANDAR
Counsel : Ms. Swastika Sharma for the State
Mr. Ashneel Nand for the Accused
Dates of Trial : 21-23 and 27-28 January 2020
Summing Up : 30 January 2020
Judgment : 5 February 2020
Sentence : 27 February 2020
The name of the complainant is suppressed. Accordingly, the complainant will be referred to as “ST”.
SENTENCE
[1] Segran Chandar, you have been found guilty and convicted of the following offences for which you were charged:
COUNT ONE
Statement of Offence
RAPE: Contrary to Section 207 (1) and (2) (c) of the Crimes Act 2009.
Particulars of Offence
SEGRAN CHANDAR, on the 6th day of June 2018, at Suva, in the Central Division, penetrated the mouth of ST with his penis, without his consent.
COUNT TWO
Statement of Offence
SEXUAL ASSAULT: Contrary to Section 210 (1) (a) of Crimes Act 2009.
Particulars of Offence
SEGRAN CHANDAR, on the 6th day of June 2018, at Suva, in the Central Division, unlawfully and indecently assaulted ST, by sucking his penis.
COUNT THREE
Statement of Offence
RAPE: Contrary to Section 207 (1) and (2) (c) of Crimes Act 2009.
Particulars of Offence
SEGRAN CHANDAR, on the 7th day of June 2018, at Suva, in the Central Division, penetrated the mouth of ST with his penis, without his consent.
COUNT FOUR
Statement of Offence
SEXUAL ASSAULT: Contrary to Section 210 (1) (b) (i) of the Crimes Act 2009.
Particulars of Offence
SEGRAN CHANDAR, on the 7th day of June 2018, at Suva, in the Central Division, procured ST to commit an act of gross indecency.
[2] You pleaded not guilty to the above mentioned charges and the ensuing trial was held over 5 days. The complainant, ST, and his mother, Mereseini Vuniwaqa, testified on behalf of the prosecution. You gave evidence on your own behalf. You also called two other witnesses: Malini Rina Roy, your wife; and Avinesh Chand, the Maintenance Supervisor at the Annandale Apartments.
[3] At the conclusion of the evidence and after the directions given in the summing up, by a unanimous decision, the three Assessors found you guilty of the four charges. Having reviewed the evidence, this Court decided to accept the unanimous opinion of the Assessors. Accordingly, this Court found you guilty and convicted you of the said four charges.
[4] It was proved during the trial that on 6 June 2018, at Suva, you penetrated the mouth of ST, with your penis, without his consent.
[5] It was also proved during the trial that on the same day (6 June 2018), at Suva, you unlawfully and indecently assaulted ST, by sucking his penis.
[6] It was further proved during the trial that on 7 June 2018, at Suva, you penetrated the mouth of ST, with your penis, without his consent.
[7] It was also proved during the trial that on the same day (7 June 2018), at Suva, you procured ST to commit an act of gross indecency, by getting the complainant to kiss you on your right breast.
[8] The complainant clearly testified to all the acts that you had perpetrated on him, on 6 June 2018 and 7 June 2018, while he was assisting you with the electrical work at the Annandale Apartments. I have summarized the complainant’s evidence at length in my summing up.
[9] The complainant’s date of birth is 16 May 2003. Therefore, at the time of the alleged offences, he was 15 years old, and as such, he was a juvenile.
[10] The Victim Impact Statement of the complainant has been filed in Court. Therein, it is recorded that the complainant has been emotionally and psychologically traumatized by your actions. The impact of your actions on the victim is said to be continuing, as it is reported that the complainant is still distressed and traumatized by the incident.
[11] Section 4(1) of the Sentencing and Penalties Act No. 42 of 2009 (“Sentencing and Penalties Act”) stipulates the relevant factors that a Court should take into account during the sentencing process. The factors are as follows:
4. — (1) The only purposes for which sentencing may be imposed by a court are —
(a) to punish offenders to an extent and in a manner which is just in all the circumstances;
(b) to protect the community from offenders;
(c) to deter offenders or other persons from committing offences of the same or similar nature;
(d) to establish conditions so that rehabilitation of offenders may be promoted or facilitated;
(e) to signify that the court and the community denounce the commission of such offences; or
(f) any combination of these purposes.
[12] I have duly considered the above factors in determining the sentence to be imposed on you.
[13] The offence of Rape in terms of Section 207(1) of the Crimes Act No. 44 of 2009 (“Crimes Act”) carries a maximum penalty of imprisonment for life.
[14] The severity of the offence of Rape was highlighted by the Fiji Court of Appeal in the case of Mohammed Kasim v. The State [1994] FJCA 25; AAU 21 of 93 (27 May 1994); where it was stated:
“....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.”
[15] In the case of State v. Marawa [2004] FJHC 338; HAC 16T of 2003S (23 April 2004); His Lordship Justice Anthony Gates stated:
“Parliament has prescribed the sentence of life imprisonment for rape. Rape is the most serious sexual offence. The Courts have reflected increasing public intolerance for this crime by hardening their hearts to offenders and meting out harsher sentences”.
“A long custodial sentence is inevitable. This is to mark the gravity of the offence as felt, and correctly so, by the community. Imprisonment emphasizes the public’s disapproval and serves as a warning to others who may hitherto regard such acts lightly. One must not ignore the validity of the imposition of condign punishment for serious crime. Lastly the sentence is set in order to protect women from such crimes: Roberts and Roberts (1982) 4 Cr. App R(S) 8; The State v Lasaro Turagabeci and Others (unreported) Suva High Court Crim. Case No. HAC0008.1996S.”
[16] In The State v Lasaro Turagabeci and Others (supra) Pain J had said:
“The Courts have made it clear that rapists will be dealt with severely. Rape is generally regarded as one of the gravest sexual offences. It violates and degrades a fellow human being. The physical and emotional consequences to the victim are likely to be severe. The Courts must protect women from such degradation and trauma. The increasing prevalence of such offending in the community calls for deterrent sentences.”
[17] His Lordship Justice Daniel Goundar, in the case of State v. AV [2009] FJHC 24; HAC 192 of 2008 (2 February 2009); observed:
“....Rape is the most serious form of sexual assault. In this case a child was raped. Society cannot condone any form of sexual assaults on children. Children are our future. The Courts have a positive obligation under the Constitution to protect the vulnerable from any form of violence or sexual abuse. Sexual offenders must be deterred from committing this kind of offences”.
[18] In the case of State v. Tauvoli [2011] FJHC 216; HAC 27 of 2011 (18 April 2011); His Lordship Justice Paul Madigan stated:
“Rape of children is a very serious offence indeed and it seems to be very prevalent in Fiji at the time. The legislation has 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.”
[19] In the case of Felix Ram v. The State [2015] FJSC 26; CAV 12 of 2015 (23 October 2015); His Lordship Chief Justice Anthony Gates laid down the following factors that a Court should take into account when sentencing an offender who has been convicted of Rape:
“(a) whether the crime had been planned, or whether it was incidental or opportunistic;
(b) whether there had been a breach of trust;
(c) whether committed alone;
(d) whether alcohol or drugs had been used to condition the victim;
(e) whether the victim was disabled, mentally or physically, or was specially vulnerable as a child;
(f) whether the impact on the victim had been severe, traumatic, or continuing;
(g) whether actual violence had been inflicted;
(h) whether injuries or pain had been caused and if so how serious, and were they potentially capable of giving rise to STD infections;
(i) whether the method of penetration was dangerous or especially abhorrent;
(j) whether there had been a forced entry to a residence where the victim was present;
(k) whether the incident was sustained over a long period such as several hours;
(l) whether the incident had been especially degrading or humiliating;
(m) If a plea of guilty was tendered, how early had it been given. No discount for plea after victim had to go into the witness box and be cross-examined. Little discount, if at start of trial;
(n) Time spent in custody on remand;
(o) Extent of remorse and an evaluation of its genuineness;
(p) If other counts or if serving another sentence, totality of appropriate sentence.”
[20] Furthermore, His Lordship Justice Goundar in State v Apisai Takalaibau – Sentence [2018] FJHC 505; HAC 154 of 2018 (15 June 2018); making reference to statistics of Aggravated Burglary cases filed in the High Court in 2017 and 2018, stated that “A factor that influences sentencing is the prevalence of the offence in the community........The more prevalent is an offence, the greater the need is for deterrence and protection of the community.”
[21] This has been recently affirmed by the Supreme Court in Alfaaz v. State [2018] FJSC 17; CAV0009.2018 (30 August 2018); where it was recognized that the prevalence of cases of child rape calls for harsher punishments
to be imposed by Courts. Their Lordships held:
“According to the statistics released by the Director of Public Prosecutions Office it appears that a number of rape victims
as well as victims under the age of 18 years and victims in domestic relationships or relatives were also victims of other serious
sexual offences. The rape of children is a very serious offence and it is very frequent and prevalent in Fiji. The courts must impose
harsh penalties dictated by the legislation. The courts should not leniently look at this kind of serious cases of rape of children
of tender years when punishing the offenders.”
[22] In the case of Anand Abhay Raj v. The State [2014] FJSC 12; CAV 0003 of 2014 (20 August 2014); Chief Justice Gates (with Justice Sathyaa Hettige and Madam Justice Chandra Ekanayake agreeing) endorsed the view that Rapes of juveniles (under the age of 18 years) must attract a sentence of at least 10 years and the acceptable range of sentences or sentencing tariff is between 10 and 16 years imprisonment.
[23] However, in the case of Aitcheson v State [2018] FJSC 29; CAV0012 of 2018 (2 November 2018); His Lordship Chief Justice Gates stated that the sentencing tariff for the Rape of a juvenile should now be increased to between 11 and 20 years imprisonment. His Lordship held:
“The tariff previously set in Raj v The State [2014] FJSC 12 CAV0003.2014 (20th August 2014) should now be between 11-20 years imprisonment. Much will depend upon the aggravating and mitigating circumstances, considerations of remorse, early pleas, and finally time spent on remand awaiting trial for the final sentence outcome. The increased tariff represents the denunciation of the courts in the strongest terms.”
[24] In determining the starting point within the said tariff, the Court of Appeal, in Laisiasa Koroivuki v. State [2013] FJCA 15; AAU 0018 of 2010 (5 March 2013); has formulated the following guiding principles:
“In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this time. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff. If the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range.”
[25] In the light of the above guiding principles, and taking into consideration the objective seriousness of the offences, I commence your sentence at 11 years imprisonment for the first and third counts of Rape.
[26] The aggravating factors are as follows:
(i) At the time of the incident the complainant was assisting you in your electrical work. Thus, he was your employee at the time. Being so, you should have protected him. Instead you have breached the trust expected from you and the breach was gross.
(ii) There was a large disparity in age between you and the complainant. The complainant was 15 years of age at the time you committed these offences on him. At the time you were 52 years of age. Therefore, there was a difference in age of 37 years.
(iii) You took advantage of the complainant’s vulnerability, helplessness and naivety.
(iv) You have exposed the innocent mind of a child to sexual activity at such a tender age, and thereby robbed the complainant of his innocence.
(v) The impact of the crimes on the victim was traumatic and is said to be continuing.
(vi) You are now convicted of multiple offending.
[27] Segran Chandar, you are now 53 years of age (Your date of birth being 21 August 1966). You are said to be residing with your defacto partner, with whom you have a daughter aged 16 years. You submit that you have two daughters with your ex-wife, both of whom are said to be now married, and a son, aged 7 years, who you have adopted. You are said to be supporting your ex-wife and your adopted son. Prior to your conviction, you were said to be working as an Electrician at the Friends Night Club, earning approximately $400 per week. You were also carrying out private electrical work for people after working hours. Recently, you are said to have invested in a house with your defacto partner, which carries a monthly payment of $740.00. However, these are all personal circumstances and cannot be considered as mitigating circumstances.
[28] You are a first offender. The State too confirms that there are no previous convictions recorded against you. Therefore, Court considers you as a person of previous good character.
[29] You have submitted that you are truly remorseful of your actions and assured Court that you will not re-offend. You have submitted that you now repent and blame yourself for taking advantage of a young boy. You have also submitted that being an adult that you should have controlled yourself.
[30] Considering the aforementioned aggravating factors, I increase your sentence by a further 5 years. Now your sentence is 16 years imprisonment for the first and third counts of Rape.
[31] For your previous good character I grant you a discount of 2 years. I also accept your remorse as genuine and grant you a further discount of one year for your show of remorse. Now your sentence is 13 years imprisonment for the first and third counts of Rape.
[32] You have been convicted of two counts of Sexual Assault in terms of Section 210(1) (a) and 210(1) (b) (i) of the Crimes Act respectively (Counts 2 & 4).
[33] The offence of Sexual Assault in terms of Section 210(1) of the Crimes Act carries a maximum penalty of 10 years imprisonment.
[34] However, in terms of Section 210(2) of the Crimes Act “The offender is liable to a maximum penalty of 14 years imprisonment for an offence defined in sub-section (1)(a) or (1)(b)(i) if the indecent assault or act of gross indecency includes bringing into contact any part of the genitalia or the anus of a person with any part of the mouth of a person.”
[35] In the cases of State v. Abdul Khaiyum [2012] FJHC 1274; Criminal Case (HAC) 160 of 2010 (10 August 2012) and State v. Epeli Ratabacaca Laca [2012] FJHC 1414; HAC 252 of 2011 (14 November 2012); Justice Madigan proposed a tariff between 2 years to 8 years imprisonment for offences of Sexual Assault in terms of Section 210 (1) of the Crimes Act.
[36] It was held in State v Laca (supra) “The top of the range is reserved for blatant manipulation of the naked genitalia or anus. The bottom of the range is for less serious assaults such as brushing of covered breasts or buttocks.”
“A very helpful guide to sentencing for sexual assault can be found in the United Kingdom's Legal Guidelines for Sentencing. Those guidelines divide sexual assault offending into three categories:
Category 1 (the most serious)
Cobr>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 part of the offender's body (other than the genitalia) with part of the victim's body (other than the genitalia).”
[37] In this case, as per Count 2, it has been proved that you unlawfully and indecently assaulted ST, by sucking his penis; and as per count 4, it has been proved that you procured the complainant to commit an act of gross indecency, by getting the complainant to kiss you on your right breast. Therefore, in my opinion, the offence in Count 2 should be categorized under Category 2 (ii) above; and the offence in Count 4 should be categorized under Category 3 above.
[38] As such, in the light of the above guiding principles, and taking into consideration the objective seriousness of the offences, I commence your sentence at 4 years imprisonment for the second count of Sexual Assault, in terms of Section 210 (1) (a) of the Crimes Act; and I commence your sentence at 2 years imprisonment for the fourth count of Sexual Assault, in terms of Section 210 (1) (b) (i) of the Crimes Act.
[39] Considering the aggravating factors aforementioned, which are common for all offences, I increase your sentence by a further 5 years. Now your sentence is 9 years imprisonment for Count 2 and 7 years imprisonment for Count 4. Considering your previous good character and show of remorse, I deduct 3 years from your sentences. Now your sentence would be 6 years’ imprisonment for Count 2 and 4 years’ imprisonment for Count 4.
[40] In the circumstances, your sentences are as follows:
Count 1 – Rape contrary to Section 207 (1) and 2(c) of the Crimes Act – 13 years’ imprisonment.
Count 2 – Sexual Assault contrary to Section 210 (1) (a) of the Crimes Act – 6 years’ imprisonment.
Count 3 – Rape contrary to Section 207 (1) and 2(c) of the Crimes Act – 13 years’ imprisonment.
Count 4 - Sexual Assault contrary to Section 210 (1) (b) (i) of the Crimes Act – 4 years’ imprisonment.
I order that all four sentences of imprisonment to run concurrently. Therefore, your total term of imprisonment will be 13 years.
[41] Accordingly, I sentence you to a term of 13 years imprisonment. Pursuant to the provisions of Section 18 of the Sentencing and Penalties Act, I order that you are not eligible to be released on parole until you serve 11 years of that sentence.
[42] Section 24 of the Sentencing and Penalties Act reads thus:
“If an offender is sentenced to a term of imprisonment, any period of time during which the offender was held in custody prior to the trial of the matter or matters shall, unless a court otherwise orders, be regarded by the court as a period of imprisonment already served by the offender.”
[43] You were in remand custody for this case from 19 July 2018 to 8 August 2018, when you were granted bail by this Court. Thereafter, you have been in remand custody since 5 February 2020, the day on which Court found you guilty and convicted you in this case. Accordingly, you have been in custody for a period of less than 2 months. The period you were in custody shall be regarded as period of imprisonment already served by you. I hold that a period of 2 months should be considered as served in terms of the provisions of Section 24 of the Sentencing and Penalties Act.
[44] In the result, your final sentence is as follows:
Head Sentence - 13 years imprisonment.
Non-parole period - 11 years imprisonment.
Considering the time you have spent in remand, the time remaining to be served is as follows:
Head Sentence - 12 years and 10 months imprisonment.
Non-parole period - 10 years and 10 months imprisonment.
[45] You have 30 days to appeal to the Court of Appeal if you so wish.
Riyaz Hamza
JUDGE
HIGH COURT OF FIJI
AT SUVA
Dated this 27th Day of February 2020
Solicitors for the State : Office of the Director of Public Prosecutions, Suva.
Solicitors for the Accused : Kohli & Singh, Barristers and Solicitors, Suva.
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