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State v Chandra [2013] FJMC 419; Criminal Case 159.2007 (16 December 2013)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA
Criminal Case : 159/2007

STATE

VS

SATHISH CHANDRA

For Prosecution : Ms. Kant (DPP)
For Accused : Not present .

SENTENCE

1. The accused has been convicted after a trial for one count of Attempted Rape contrary to section 151 of the Penal Code, Cap17. The judgment was delivered on 29 December 2008 in the presence of both parties.
   
2. When the case was called for mitigation and sentencing submission the accused was not present and Noah was issued.
   
3. Later the Court issued a bench warrant to arrest the accused and so far it has not been executed. From 06/06/2011 the accused is not appearing in this case and this shows that he is not interested in this matter. Also he has not filed any appeal against the judgment.
   
4. Therefore when this was called before me I directed the learned state counsel to file the sentencing submission for this case and this was filed on 05 December 2013.
   
5. Maximum penalty for this offence under the Penal Code is seven years imprisonment.
   
6. In Aunima v State [2001] FJHC 294; [2001] 1 FLR 213 (27 June 2001), Madam Justice Shameem highlighted the tariff for the offence of Attempted Rape stating:
   

'.....I find that the accepted tariff for Attempted Rape in the Fiji Courts ranges from 12 months imprisonment to 5 years imprisonment. A starting point should then be chosen according to the seriousness of the offending'.

7. In the case of State v Samoi [2010] FJHC 410; HAC093.2010S [6 August 2010] Justice Temo also relied on the tariff as was highlighted by Madam Justice Shameem in Aunima v State [Supra] in considering the sentence for the accused and stated that the actual sentence passed will depend on the aggravating and mitigating factors.
   
8. The aggravating factors are breach of trust as the victim was close to the accused and used to call him uncle, the age of the victim at that time and the age gap between the parties.
   
9. Mitigating factors are that the accused was married with children. The state failed to disclose any previous convictions against the accused and therefore he would be considered as a first offender.
   
10. I select 02 years as my starting point and add 02 years for aggravating factors to reach 04 years. Deduct 01 year for mitigating factors to reach 03 years.
    
11. Therefore the accused is sentenced to 03 years imprisonment for the offence of Attempted Rape contrary to section 151 of the Penal Code. I also fix a non parole period of 02 years.
    
12. As the accused is absconding this sentence will be activated from the date of his apprehension.
    
13. 28 days to appeal.
    

16 December 2013

H. S. P. Somaratne
Resident Magistrate, Suva