Ramasi v The State [2001] FJHC 109; Haa0083.2001 (16 November 2001)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL ACTION NO. HAA 083 OF 2001

BETWEEN:

PONIPATE RAMASI
APPELLATE

-v-

THE STATE
RESPONDENT

Ms. Narayan (Legal Aid) -for the Appellant
Ms Kiji Bavou- for the Respondent

JUDGMENT

Background

1. This Matter concerns an Appeal by Ponipate Ramasi against the Sentence of 3 years imprisonment imposed by the Magistrate sitting at Suva on 20^th August, 2001.

The Appellant had pleaded guilty 5 days earlier (15^th August) to one Charge concerning the Defilement of a Girl under the age of 13 years (contrary to Section 155 of the Penal Code). Unfortunately, this brief background does not reveal the detailed chronology of the Case – especially those relating to The Offence, The Court Hearings and The Personal Details of the Appellant and Victim.

The Offence:

2. The Offence was committed on an unspecified day between 1^st and 31^st March 1998.

The Agreed Facts are spelt out in the Magistrate’s Court Papers (at page 5):

“Sometimes between 01/03/98 to 31/03/98, accused and victim are from the same village. The victim was at that time aged 10 years 5 months, a Class 4 student at Tuatua Village School. Accused was a Juvenile at that time. At 8.00pm on the night in question, the complainant and a friend were returning from a shop. Accused came after having his river bath, he was inside a house changing his clothes. Complainant went past, passed remarks to Accused who came out of the house, pulled the victim, put her on top of her bed, removed her panty, removed his clothes, and had sexual intercourse.

The friend of the victim came into the house and disturbed them. Accused stood up and went away the victim went home. The matter was later known by the victim’s mother, she told her the whole story. The mother reported the matter to Police, interviewed, admitted, accused said he had only a slight penetration.”

The Court Hearings:

3. The Matter first came before the Magistrate on 23^rd October, 1998 (7 months after the alleged commission of the Offence). The Appellant did not appear on that date. No details were recorded for this absence, and the Magistrate issued a Bench Warrant. That was probably an unfortunate over-reaction by the Magistrate – especially as it was plain from the Police details that the Accused (Appellant) was a juvenile. What actually happened to the Bench Warrant in the meantime is not clear: the Magistrate’s Notes do not include details of any inquiry about the non-appearance.

It was not until August 2001 (nearly 3 years later) that the Appellant appeared in Court before the same Magistrate.

The Appellant’s date of birth (17^th May, 1984) was on the Court Papers (Page 4 of the Record) and this (if nothing else) should have alerted the Magistrate that this Offence, this Offender and the particulars of the Case needed close examination.

The Personal Details of the Appellant (and Victim):

4. (1) The Appellant: Date of birth: 17^th May, 1984

Age at time of Offence: 13 years 10 months (1998)

Age on Appearance in Court: 17 years 3 months (2001)

(2) The Victim: Date of Birth: 9^th August, 1987

Age at time of Offence: 10 years 7 months (1998)

If the Magistrate had had details (and he certainly should have called for them) he might well have dealt with this Matter differently. Under the Juvenile Act (Cap. 56) both the Appellant and the Victim were defined as “children” at the time of the alleged Offence. And even on the date when Sentenced the Appellant was only 17 years old.

Against this background the Magistrate should not have proceeded without further enquiry, or without considering the need for legal representation for the Appellant.

Sentencing

5. From the examination of the Magistrate’s Record it appears that (on 20^th August, 2001) there was an immediate “rush to sentence”. The entire 7 paragraphs (pages 5 and 6 of the Record) that “support” the Sentencing decision are (put at its kindest) unfortunate and inappropriate.

The net result was this Appellant was sent to prison for 3 years for an offence committed when he was under the age of 14. That cannot be right.

Today the Appellant is thankfully represented by Counsel for the Director of Legal Aid and I have helped by her written submissions together with various Authorities. The State has conceded that this Appeal must be allowed; I think that is a sensible concession.

Ruling:

6. His Appeal against Sentence is to be allowed. The Prison Sentence is to be quashed The Appellant is to be immediately released.

7. I make an Order that the Appellant is to be Conditionally Discharged (vide Section 44 of the Penal Code) for a period of 6 months. The meaning of the Conditional Discharge Order has been explained to the Appellant by me in ordinary language. The Appellant confirms that he understands.

[Peter Surman]

JUDGE OF THE HIGH COURT

At Suva
16^th November, 2001