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State v Bala - Sentence [2022] FJHC 127; HAC101.2020 (15 March 2022)

IN THE HIGH COURT OF FIJI

AT SUVA

[CRIMINAL JURISDICTION]

CRIMINAL CASE NO. HAC 101 OF 2020

STATE

V

RAJNESH BALA

Counsel: Ms S Shameem & Ms P Mishra for the State

Mr K Gosai & Ms S Singh for the Accused

Date of Hearing: 21 February – 24 February 2022
Date of Judgment: 4 March 2022
Date of Sentence: 15 March 2022

SENTENCE

[1] The victim was born on 20 January 2002. After her parents separated when she was about 10 years old, she moved to live with her father and stepmother in New Zealand. In 2015 she returned to Fiji to live with her biological mother who at the time was staying in Lautoka.

[2] The Accused is the de-facto partner of the victim’s biological mother. In 2017, the victim’s mother moved to Suva to live with the Accused. At the time the Accused was a divorcee with a teenage son living with him.

[3] Shortly after the victim moved to Suva the Accused carried out a campaign of sexual abuse against the victim between 2017 and 2019. The victim was 15 years old when the abuse started. The Accused was in his early forties.

[4] The victim did not report the abuse to anyone because the Accused had instilled fear in her that she would be removed from her home by the Social Welfare if she complained. She reported the sexual abuse to her teachers after she turned 18 years of age in 2020. Apparently, her mother had turned a blind eye to the abuse when she complained to her in 2019.

[5] The appellant was arrested and charged with one representative count of sexual assault and one representative count of rape. He was tried and convicted of the two charges.

[6] I do not hold against the Accused for exercising his right to a trial. However, I am obliged to consider the conduct of the offender during the trial as an indication of remorse or the lack of remorse (s 4 (2) (g) of the Sentencing and Penalties Act). The Accused denied the allegations. His evidence was that he treated the complainant like his own daughter but she had betrayed his trust by falsely accusing him of sexually assaulting and raping her.

[7] I did not accept the allegations of sexual abuse were fabricated by the complainant. I believed the complainant’s account that the Accused sexually fondled her breast and had sexual intercourse with her, without her consent and despite her resistance. I believed her account that she suffered physical and emotional pain at the time when the Accused sexually abused her. He did not use any protection during sexual intercourse but ejaculated after withdrawal. I accept that the sexual abuse had an impact on the complainant’s physical and psychological development.

[8] The Accused has expressed very little remorse for the harm that he had caused to the complainant.

[9] In deciding an appropriate punishment, I am mindful that the offence of rape is objectively serious. Rape is punishable by life imprisonment and the tariff for rape of a child range from 11 years imprisonment to 20 years imprisonment (Aitcheson v State [2018] FJSC 29; CAV0012.2018 (2 November 2018)).

[10] The maximum penalty for sexual assault is 10 years imprisonment and the tariff range from 2-8 years imprisonment (State v Laca [2012] FJHC 141C25HAC252.2011 (14 November 2012)).

[11] The Accused was educated up to Form 6. He was married but later got divorce has a grown up son who resides with him. He is now 46 years old. He is employed as a driv driver by a private company. His employer has given evidence that he is a dedicated and committed employee. His soccer colleague has given evidence that he is a passionate and dedicated soccer player. The Accused’s pastor has provided the court with a character reference saying that the Accused is a dedicated Christian. I do not doubt that the Accused is respected by his employer, soccer colleagues and church pastor for his dedication and values. I consider the Accused’s previous good character as a mitigating factor, but I am not able to give undiminished weight to the Accused’s character due to the nature and gravity of the offence committed by him on a child victim under his care and protection.

[12] The Accused was in a position of special trust as the victim’s stepfather. The age gap between them was vast. The Accused created an environment of helplessness for the victim. He had instilled fear in the mind of the victim regarding the repercussions of reporting the abuse. When the first incident of sexual assault was not reported, the abuse was repeated in form of rape. These are serious aggravating circumstances.

[13] As the Court of Appeal in Drotini v State [2006] FJLaw; [16; [2006] FLR 125 (24 March 2006) said at [16]:

There are few more serious aggravating circumstances than where the rape is committed on a juvenile girl by a family member or se who is in a position of s of special trust. The seriousness of the offence is exaggerated by the fact that family loyalties and emotions all too often enable the offender or other family members to prevent a complaint going outside the family. If the child then remains in the family home, the rapist often has the opportunity to repeat the offence and to hope for the same protection from the rest of the family.

[14] The court denounces the crimes committed in this case in the strongest terms.

[15] After taking all these factors and the remand period of 2 months into account, the Accused is sentenced to 4 years imprisonment for sexual assault (count 1) and 14 years imprisonment for rape (count 2), to be served concurrently. The total effective sentence is 14 years imprisonment with a non-parole period of 12 years.

[16] A permanent DVRO with standard no contact and non-molestation conditions is issued against the Accused for the protection of the victim.

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

Solicitors
Office of the Director of Public Prosecutions for the State
Gosai Lawyers for the Accused