Karawa v The State [1990] FJHC 45; Haa0010j.1990b (25 May 1990)

IN THE HIGH COURT OF FIJI
At Labasa
Criminal Jurisdiction

CRIMINAL APPEAL NO. 10 OF 1990

Between:

VILIAME KARAWA
Appellant

v.

STATE
Respondent

Appellant in Person
Mr. R. Perera for the Respondent

JUDGMENT

On the 12th of March 1990 the appellant was convicted in the Savusavu Magistrate Court after he pleaded guilty to committing an Unnatural Offence. He was sentenced to 3 years imprisonment and 5 strokes of corporal punishment.

He now appeals against the sentence on the ground that it is harsh and excessive having regard to his relative youth; his guilty plea and his past good character.

The brief facts of the case are that on the day in question the appellant took the victim for a horse ride and ultimately buggered him.

The offence is aggravated in several respects. The victim was a child of 3 1/2 years and serious physical injuries were sustained consistent with forceful anal penetration. The doctor who examined the victim also warned in his prognosis that the victim would be prone to develop sexual perversion and would require close parental supervision on his reaching puberty.

The appellant on the other hand is a slightly built youth of 17 ½ years. He is a first offender and has already served 2 months of his prison sentence. No social welfare report was sought in this case however it is not suggested that the appellant is a practising homosexual.

I am satisfied that this is an isolated case of sexual adventurism on the appellant's part nevertheless as was said by Acting C.J. Hammett in R. v. Richardson 9 FLR 129 at 131:

"It is part of the function of the law to safeguard those who need protection by reason of their youth. Men who commit offences against such persons must be treated as criminal offenders. Whatever may be the causes of their disposition or the proper treatment for it, the responsibility for their overt acts remains theirs ...... offences of this kind are particularly reprehensible when the men who commit them are in positions of special responsibility."

In this case the appellant under the pre-text of taking the victim for a joy-ride committed what the learned magistrate correctly describes as "....... an unpardonable dastardly act."

However in Francis Prem Chand v. R. 11 FLR 53 in reducing a sentence of 18 months imprisonment to one of 3 months for an unnatural offence the learned Chief Justice Mills-Owen observed at p.54 after examining the sentences in several cases:

"Clearly there has been a change in outlook both of the courts and public, with respect to such offences in recent years. Whilst formerly severe sentences were often imposed, today it is not uncommon for such an offender to be bound over on condition of taking medical treatment. Cases where young boys are the victims may, of course require a certain severity. In cases such as the present the offence is one which to a very considerable degree carries its own punishment of ignominy and disgrace."

With respect to the learned Chief Justice those observations are as true today as they were in 1965, perhaps more so!

There is no doubt in my mind that the sentence in this case was an excessively severe one and it is accordingly reduced to one of 9 months imprisonment. The sentence of corporal punishment not being supported by the State is also set aside.

(D.V. Fatiaki)
JUDGE

At Labasa,
25th May, 1990.

HAA0010J.90B