Kunadei v The State [2002] FJHC 187; HAA0080J.2002S (3 December 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0080 OF 2002S

Between:

RATU TEVITA RAIVALITA B. KUNADEI
Appellant

And:

THE STATE
Respondent

Hearing: 29th November 2002
Judgment: 3rd December 2002

Counsel: Ms J. Nair for Appellant
Mr D. Toganivalu for State

JUDGMENT

The Appellant, was convicted, on his plea of guilty to one count of Defilement of a girl under the age of 16 years. The charge read as follows:

Statement of Offence

DEFILEMENT OF A GIRL BETWEEN THIRTEEN AND SIXTEEN YEARS OF AGE: Contrary to Section 156(1)(a) of the Penal Code, Act 17.

Particulars of Offence

RATU TEVITA RAIVALITA BALEISOMOSOMO KUNADEI, between the 15^th day of January 2001 and the 30^th day of May, 2001 at Navua in the Central Division, had unlawful carnal knowledge of SERESONI DREKETI, a girl being of or above the age of thirteen years and under the age of sixteen years.

The Appellant pleaded guilty on the 3^rd of July 2002. The facts, which he admitted were that the Appellant and the complainant were having a relationship. They both lived at Nakorovou Village in Serua. She was 14 years and 9 months old. He was 21. He asked her if she would have sexual intercourse with him. She agreed. She became pregnant and gave birth to a child on 17^th February 2002. She told her mother that the Appellant was the father of the child. Her mother reported the matter to the police.

The Appellant said in mitigation that he would not re-offend, that he was taking care of his mother, and that he had reconciled with the complainant. The learned Magistrate said:

AThis offence is getting out of hand. Men of various age groups are taking advantage of young girls under 16 years of age. It should stop, and one way of preventing this is to send people to prison as a deterrence to this accused from re-offending and to others. Because of your guilty plea I shall give you discount and I order that you be sentenced to 3 years imprisonment.@

The Appellant appeals against this sentence on the ground that the learned Magistrate failed to take into account his mitigating factors, and that the sentence was harsh and excessive.

At the hearing of this appeal, counsel for the Appellant submitted that the learned Magistrate only took into account one mitigating factor, and that was the plea of guilty. Other factors such as good character, the bulubulu, and the fact that he has acknowledged the child, were, she said, ignored. She submitted that because the Appellant and the complainant were both young, and in a relationship, a non-custodial sentence should have been imposed.

State counsel agreed that the learned Magistrate erred in failing to take into account all the mitigation and suggested a reduction of the sentence.

As I said in Elia Donumainasava -v- The State Crim. App. HAA0032 of 2001, the offence under section 156(1)(a) of the Penal Code, is designed to protect young girls, who are experiencing social and hormonal changes from sexual exploitation. The maximum sentence is five years imprisonment. The tariff for the offence, appears to range from a suspended sentence (where the accused was a young man involved in a relationship with the complainant) to 3 years imprisonment (for cases of the sexual abuse of young girls by older men, or by men who are in a position of trust in relation to the victims).

This was a case of a young man having a relationship with his girlfriend. However the victim was only 14 years old, and became pregnant as a result of the offence. Clearly, her education (and her childhood) is at an end. I therefore would choose a starting point of 18 months imprisonment. I would give 6 months discount for the guilty plea, and a further 6 months for the reconciliation, remorse and good character. I therefore arrive at a sentence of 6 months imprisonment.

The sentence of 3 years imprisonment is therefore wrong in principle, and excessive. I allow this appeal, quash the sentence and substitute it for a term of 6 months imprisonment.

Nazhat Shameem
JUDGE

At Suva
3^rd December 2002