Deo v The State [1998] FJHC 79; Haa0047.98 (29 May 1998)

Fiji Islands - Taj Deo v State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CRIMINAL APPEAL NO. 47 OF 1998

BETWEEN:

TAJ DEO
Appellant

AND:

THE STATE
Respondent

&nbsp

pellant in Person
Mbr> Mr Peter Petaia: Counsel for the Respondent

JUDGMENT

On 2nd March 1998 the appellant Taj Deo, was conviconvicted by the Magistrates' Court, Nausori, on Count 1 for the offence of abduction of girl under the age of 16 years contrary to section 255 of the Penal Code and was sentenced to 12 months imprisonment. On Count 2 he was convicted of the offence of rape contrary to sections 149 and 150 of the Penal Code and was sentenced to five (5) years imprisonment. It was also recommended that he receive ten strokes of corporal punishment. The sentences were to be served consecutively. He had pleaded guilty to both the counts.

The suspended sentence of one year imprisonment in the Nausori Magistrates' Court Criminal Case No. 446 /97 was also activated. This was consecutive to sentence of six (6) years imprisonment.

He has now appealed against the sentence as being harsh and excessive.

The victim was only 11 years old. She was taken from her school by the appellant. The appellant had gone to her school falsely telling her school teacher that the child's father wanted the child to be picked up from the school. The teacher believed the appellant and released the child. The appellant took the child to his house quite a distant away. The child and the appellant live in the same area. The appellant took the child into his bedroom and forced her to have sexual intercourse. The child received injuries to her vagina and was bleeding. After having sexual intercourse the appellant released the child who went and reported this incident to her mother.

There are horrifying features in this case when the victim was just 11 years old. There are no mitigating circumstances in this case except to say that the appellant had pleaded guilty and the child was saved from the ordeal of giving evidence in court. The appellant has bad criminal record. He had committed this crime while on suspended sentence.

The appeal against the sentence is dismissed. But the corporal punishment is not confirmed as the learned Magistrate had not complied with section 34(4) of the Penal Code which states –

"34 (4) - No sentence of corporal punishment shall be passed any of the following persons:

(a) females;

(b) males sentenced to death;

(c) Males whom the court considers to be more than thirty-five years of age;

(d) Persons under the age of seventeen years."

The age of the appellant was not properly given although he said he was 28 years old. His birth certificate should have been produced. The prosecution also does not support the corporal punishment because of the appellant's health.

S N Sadal
PUISNE JUDGE

SUVA
29th May, 1998