Valo v The State [1990] FJHC 37; Haa0008j.90b (5 April 1990)

IN THE HIGH COURT OF FIJI
At Labasa
Appellate Jurisdiction

CRIMINAL APPEAL NO. 8 OF 1990

Between:

AISAKE VALO
Appellant

v.

STATE
Respondent

Appellant in Person
Mr. R. Perera for the Respondent

JUDGMENT

The appellant was sentenced to 18 months imprisonment after he pleaded guilty to an offence of Defilement before the Labasa Magistrate Court.

He now appeals against the harshness of the sentence and urges 11 grounds in mitigation including his guilty plea and his previous sexual experience with the complainant.

In sentencing the appellant the learned trial magistrate merely said:

"(The) Accused is a married man with one child. He had entered the complainant's house at midnight and had committed this offence."

No reference was made to the appellant's guilty plea, the undisputed prior relations between the appellant and the complainant or the consensual nature of the intercourse alleged in the offence.

In opposing the appeal learned State Counsel asserted that consent was not an excuse and whilst that may be strictly correct, there can be no denying that the previous sexual experience of the complainant esp. with the appellant is a relevant factor in mitigation of sentence.

In these types of cases it is well to remember the words of Lawton L.J. in Derek Roy Taylor and Others v. R. (1977) 64 Cr. Appeal Reports 182 at 185 when he said:

"What does not seem to have been appreciated by the public is the wide spectrum of guilt which is covered by the offence known as having unlawful sexual intercourse with a girl under the age of sixteen. At one end of the spectrum is the youth who stands in the dock, maybe 16, 17 or 18, who has had what started off as a virtuous friendship with a girl under the age of 16. That virtuous friendship has ended with them having sexual intercourse with one another. At the other end of the spectrum is the man in a supervisory capacity, a school-master or social worker, who sets out deliberately to seduce a girl under the age of 16 who is in his charge. The penalties appropriate for the two types of case to which I have just referred to are very different indeed. Nowadays, most judges would take the view, and rightly take the view, that when there is a virtuous friendship which ends in unlawful sexual intercourse, it is inappropriate to pass sentences of a punitive nature."

In arguing his appeal the appellant asserted that the complainant had already borne a child. This was not disputed by learned State Counsel nor was it suggested that the intercourse that occurred between the appellant and the complainant was other than consensual or that that was the first time that it had occurred between them.

Furthermore no birth certificate of the complainant was produced at the trial or on appeal to prove her age nor is it suggested that she received any injuries from the encounter.

Nevertheless, the appellant has pleaded guilty and admitted the prosecution's factual assertion that the girl is aged 14 years 8 months. In the circumstances the appellant's conviction cannot be faulted.

The appellant is 24 years of age and is a first offender for all intents and purposes. He is married with one child and supports his mother and 2 younger brothers. He pleaded guilty and has already served almost 2 months of his sentence.

He asks to be allowed to return to his family and I am minded to accede to this request, however the law on defilement is especially enacted for the protection from exploitation of young girls such as the complainant and persons who prey on their naivety must be dissuaded by the courts.

In all the circumstances, the appellant's appeal against sentence is allowed so as to permit his immediate release upon his entering in his own recognizance in the sum of $100 he keep the peace and be of good behaviour towards the complainant Luisa Cagimaiwai for a period of 2 years.

(D.V. Fatiaki)
JUDGE

At Labasa,
4th May, 1990.

HAA0008J.90B