Ketedromo v The State [1994] FJHC 184; Haa0013j.94b (13 December 1994)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 13 OF 1994

Between:

LAISENIA KETEDROMO
Appellant

- and -

STATE
Respondent

Appellant in Person
Mr. D. McNaughtan for State

JUDGMENT

This is an appeal against severity of sentence of four years' imprisonment imposed upon the Appellant by Magistrate's Court at Nabouwalu on 25 February 1994 on his own plea on two counts of sodomy committed in January 1994 and 4 February 1994 contrary to section 175(a) of the Penal Code.

The grounds of his appeal are that for a first offender the sentence is harsh and excessive and that no medical examination was done on the victim to satisfy if there were any injuries. At the hearing, after the appellant was made aware of the contents of the Report on him from St. Giles and the Probation Officer, he said that he is asking for reduction of sentence and to be "forgiven".

The learned State Counsel in opposing the petition said that the term of imprisonment is in no way harsh and excessive and in support referred to some English cases from which I have derived considerable assistance.

This indeed is a very serious case in which the victim is only 5 years old whereas his assailant is 19 years of age.

The law provides for 14 years imprisonment for this type of offence.

The only mitigating factors were that he admitted his guilt and that he was a first offender. This appeal came before me on 27 April 1994 but because the appellant stated that as a result of a fall from a coconut tree some years ago he suffered dizziness and headaches and when he got this he was "bound to commit this type of thing", I called for a Probation Officer's Report on him and further ordered that he be examined at St. Giles Hospital as to his mental condition.

Now I have the two Reports on him which have greatly assisted me in considering this appeal. The Psychiatrist's report does not disclose that the appellant is other than normal. The Probation Officer's Report and particularly the following "conclusion/recommendation" and the reference therein that he (the victim) "has been practising what has been done to him with members of his age group, when left alone" is disturbing:-

"After an in depth interview it is concluded that -

(1) the victim was an innocent child;

(2) the offender has created an unstable atmosphere between the extended family members within their community.

(3) The old wound between the extended family has not healed completely.

(4) The victim's family would like to teach the offender a good lesson by taking him to court and be punished for what he has done.

(5) The victim's life is of very great concern especially when he is physically and mentally disturbed.

(6) The offender according to the members of the community is of good character and has been brought up from a disciplined family but it still does not guarantee that there will be a complete change in his attitude and behaviour; and

(7) Reconciliation between the extended family is very important before his release."

In R v WILLIS (1974) 60 Cr. App. R.146 C.A. LAWTON L.J. gave some guidance to judges in the matter of sentencing in this type of offence without in any way, as he says to "be taken as a desire on our part to put judges into sentencing strait-jackets". He said that "judges should always regard buggery with boys under the age of 16 as a serious offence - and the younger the boy the more serious the offence". He goes on to say:

"In our judgment, the sentencing bracket for offences which have neither aggravating nor mitigating factors is from three to five years; and the place in the bracket will depend on age, intelligence and education. Few offences, however, have neither aggravating nor mitigating factors. Many have both. When this happens the judge has to weigh what aggravates against what mitigates."

The Court in WILLIS (supra) stated the aggravating factors (without being taken to be "making an all-embracing list or to be setting them out in order of importance") as:

(1) Personal injury to the boy; (2) Emotional and psychological damage; (3) Moral Corruption and (4) Abuse of Authority and trust. As for "main mitigating factors" the Court stated them as: (1) Mental imbalance; (2) Personality disorders and (3) Emotional distress.

In this case the appellant had raised the matter of injury to the victim. The facts, as admitted by the appellant, are that "he inserted his penis into the boy's anus. The boy yelled out." Hence it is abundantly clear that penetration did take place and the consequential injury is as stated in the medical report. In WILLIS (supra) on injury the Court said:

"This may come about as a direct result of penetration. The Wolfenden Report thought this was very rare (see para. 85); but it does sometimes occur in boys under the age of 10; and when it does the victim may be left for life with an embarrassing disability."

In R v SHERIDAN (1986) 8 Cr. App. R (s) 10 where the boy was 13 years old the sentence of five years' imprisonment was passed for attempted buggery (attempted to bugger the boy by force, but the boy escaped).

Bearing in mind the serious nature of the offence on a boy of tender age and the fact that buggery is an offence which stands in isolation when the question of sentence is being considered, I do not consider that the term of imprisonment was either wrong in principle or excessive in length.

The appeal is dismissed.

D. Pathik
Judge

At Labasa
13 December, 1994

HAA0013J.94B