State v Seru [2002] FJHC 197; HAM0001J.2001B (23 April 2002)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

MISCELLANEOUS NO. 1 OF 2001
(Taveuni Cr. Case No. 240 of 2001)

STATE

v

SETERO SERU

Amicus Curiae:
Mr. J. Rabuku, State Counsel
Ms. M. Salele, Legal Officer, Legal Aid Commission

JUDGMENT
(SENTENCE)

This matter has come before the High Court for sentencing.

The accused appeared before the Resident Magistrate, Labasa on three counts of unnatural offence contrary to section 175(a) of the Penal Code, Cap. 17.

The Particulars of Offence in the three Counts read as follows:

First Count

SETERO SERU, between the 1st day of December, 2000 to the 23rd day of January, 2001 at Qeleni, Taveuni in the Northern Division had carnal knowledge of JERRY KIKAU against the order of nature.

Second Count

SETERO SERU, between the 1st day of December, 2000 to the 23rd day of January, 2001 at Qeleni, Taveuni in the Northern Division had carnal knowledge of IOKIMI DIGOGO against the order of nature.

Third Count

SETERO SERU, between the 1st day of December, 2000 to the 23rd day of January, 2001 at Qeleni, Taveuni in the Northern Division had carnal knowledge of TOMASI TIKOMAIWAIYEVO against the order of nature.

On his own plea of guilty on each of the three Counts the accused was on 9 August 2001, after the facts as outlined were admitted by him, convicted as charged. The learned Magistrate heard him in mitigation when the accused said: "Am 26 years old. Farmer. Ask for leniency. Am from Qeleni Village in Taveuni, Single. Live with my parents."

The learned Magistrate then remanded the accused in custody until 13 August 2001 for sentencing. Thereafter he sent this file to the High Court for sentencing for the reasons appearing hereunder under the provisions of Section 222 of the Criminal Procedure Code Cap. 17:

The accused sodomised these 3 young students on 3 different occasions to satisfy his sexual lust. It is abhorrent to say the least and should be condemned and detested by all right thinking members of Society.

They were cruel and senseless acts on these 3 innocent boys who I am sure will carry these trauma and scars for the rest of their lives.

The penalty for this sort of offence is 14 years imprisonment with or without corporal punishment. My sentencing powers is only up to 5 years imprisonment. The penalty shows the seriousness of these offences.

In my view, even though the accused is a first offender and has pleaded guilty thus saving the indignity of these 3 young boys giving evidence in court, 5 years imprisonment is not enough to sentence this accused to.

I agree with the learned Magistrate that his powers are limited for sentencing purposes bearing in mind the seriousness of the offence. This Court's powers in this situation under section 222 provides:

222. - (1) Where a person, being not less than seventeen years of age, is tried by a resident magistrate for any offence, and such person is convicted by such magistrate of that offence, or of any other offence of which he is liable to conviction under the provisions of this Code then, if, on obtaining information as to his character and antecedents the magistrate is of opinion that they are such that greater punishment should be inflicted in respect of the offence than the magistrate has power to inflict, the magistrate may, in lieu of dealing with him in any manner in which the magistrate has power to deal with him, commit him in custody or on bail to the Supreme Court for sentence in accordance with the following provisions of this section.

(2) Where the offender is so committed for sentence as aforesaid the following provisions shall have effect, that is to say:-

(a) the Supreme Court shall enquire into the circumstances of the case, and shall have power to deal with the offender in any manner in which he could be deal with if he had been convicted by the Supreme Court; and

(b) if dealt with by the Supreme Court the offender shall have the same right of appeal to the Fiji Court of Appeal as if he had been convicted and sentenced by the Supreme Court;

(c) the Supreme Court, after hearing counsel for the Crown if he desires to be heard, may remit the accused for sentence, in custody or on bail, to the magistrate which originally committed the accused for sentence, and thereafter the accused shall be dealt with by such court and shall have the same right of appeal as if no such committal to the Supreme Court had been made.

Facts

In considering the appropriate sentence, the facts surrounding each count has to be borne in mind and they are very briefly as hereunder:

Facts on First Count

The victim is a 7 year old student. The accused offered bananas to him and the victim followed the accused to where the bananas were. There the accused told him to remove his pants which he did whereupon the accused 'inserted his erected penis into victim's anus and sodomised him' and ejaculated.

Facts on Second Count

The victim is an 8 year old student to whom he also offered bananas. His modus operandi was the same as in Count 1.

Facts on Third Count

The victim is a 9 year old student who was returning from his dalo plantation. He did the same to this victim as he did in the other two counts.

These offences were committed between 1 December 2000 and 23 January 2001 but on different dates.

The victims complained of pain as a result of what the accused did to them but he did not pay any heed to it. He threatened to kill them if they reported the matter to anyone.

When the parents came to know of what happened to their children the matter was reported to police. Thereafter the victims were medically examined and their Medical Reports were tendered to Court. The accused was located, interviewed, arrested and charged.

Determination of appropriate sentence

At the outset I must acknowledge the assistance rendered to Court, as amicus curiae, by Mr. J. Rabuku, State Counsel and Ms. Salele, Legal Officer from the Legal Aid Commission by furnishing the Court with authorities.

The accused has no doubt committed a very serious offence on boys aged 7, 8 and 9 years respectively on each of the three counts. The way he enticed these boys to accompany him before he committed the offence shows that it was premeditated and well-planned. Whether he has the propensity to commit this type of offence has not been revealed except that he is a first offender. It was his misfortune to have been caught.

This is a sexual offence and I would place it in almost the same category as the sexual offences of rape and incest. In this case the law provides a maximum sentence of 14 years imprisonment with or without corporal punishment.

The legislature has indicated the gravity of the offence by the maximum penalties which could be inflicted which will vary primarily with the age of the victims and the degree of coercion.

In deciding on the appropriate sentence in this case, I have borne in mind the factors which ought to be considered, and particularly in recent years the concern of the public for sexual offences committed on very young boys and girls. The Courts are greatly perturbed with the increase in such offences in recent past. It seems that sentences meted out so far do not appear to have any effect on would-be offenders. The non-governmental organisations are up in arms and rightly so on recent increase in such offences with the Courts sentences not having the desired effect on offenders. I would like to point out to the public at large, and to anyone minded to commit offences of the kind before me and like offences, the total unacceptability of such conduct towards children.

In my four and a half decade in the law in Fiji the situation in the area of sexual offences, which has dramatically increased, has never been as bad or worse as it is now. I feel that the time is now opportune for the Courts to lay down a guideline for the minimum sentence for an offence of the nature such as the one before me. The learned Magistrate, Labasa Mr. Maika Nakora is to be commended for referring the case for sentencing to the High Court for as is evident from his remarks referred to hereabove his 5 years jurisdiction is not enough and I agree.

With those remarks I would like to refer to the following passage from the report of Wolfenden Committee in 1957 on the function of the criminal law in the field of sexual offences which is apt in the context of this case:

"To preserve public order and decency, to protect the citizen from what is offensive and injurious and to provide sufficient safeguards against exploitation and corruption of others, particularly those who are specially vulnerable because they are young, weak in body or mind, inexperienced or in a state of special physical, official or economic dependence." (emphasis mine)

In considering the sentence in a case such as this, the matters which had to be considered as stated in the incest case of Wilfred James Corless [(1989) 11 Cr. App. R.(S) C. A. 47 at 48, Lord Lane C.J.] are various. Firstly the ages of the boys: in this case they are 7, 8 and 9 years old respectively; they are very young. Secondly, the length of time over which this offence was committed: in this case over a period of six weeks. Was there any violence - the effect on the boys: it must affect their chances of being able to have a contented and satisfactory adult life particularly with regard to sex. His previous record: there is no record at all of crime against the accused. Finally, what was the plea: that perhaps in this case is the one mitigating feature; there was a plea of guilty here which no doubt saved the boys from further trauma if they had to give evidence as the learned Magistrate also stated. Plea of guilty, which is a mitigating feature, it should be met by an appropriate discount, depending on usual considerations, namely how promptly the accused confessed and his degree of contrition and so on, [Attorney-General's Reference (No. 1 of 1989) (1989) 11 Cr. App. R.(S) C.A. 409 at 414).

Apart from the factors outlined above, it has been stated further in Stephen John Peter Jones [(1991) 92 Cr. App. R. 288 C.A. Lord Chief Justice, Mr. Justice Kennedy] (which dealt with sentence in sexual attacks against young children and setting out guidelines on aspects to be taken into account) that:

"There are certainly five aspects which a sentencing judge, and in this position this Court, has to take into consideration when determining the correct sentence for this type of offence: first of all the overall gravity of the offence; secondly, the necessity for punishment of the offender, something which is sometimes over-looked; thirdly, the necessity to protect the public from the activities of someone who is prepared to sniff solvent and then, having his sexual inclinations aroused, goes and commits this type of offence; fourthly, the public concern at sexual offences on young children; and fifthly what one hopes may be the deterrent effect, the effect which a severe sentence may have upon other people who might be minded to act in this way". (emphasis mine)

Again on the question of appropriate sentence I have been guided by the following passage from the judgment of Burt C.J. in Bensegger v R Supreme Court W.A. C.C.A. [1979] WAR 65 at 68.

"A maximum sentence prescribed by statute is not reserved for the worst offence of the kind dealt with by it that can be imagined. If such were the case it could never be imposed as the addition of further non-existing but aggravating circumstances would never be beyond the reach of imagination. The true rule as I understand it is that the maximum sentence should be reserved for the worst type of case falling within the prohibition or, as it is expressed by Dwyer CJ in Reynolds v Wilkinson [1948] WALawRp 1; (1948) 51 WALR 17, at 18, "for the worst cases of the sort". That expression should be understood to be marking out a range and an offence may be within it notwithstanding the fact that it could have been worse than it was. In my opinion, on the facts as appearing in the trial judge's report to this court these offences, and particularly the smuggling offence, can each fairly be said to be of the worst type and notwithstanding the fact that it was the applicant's first offence "of the sort" and notwithstanding the antedecents and personal history of the applicant which, as the trial judge points out, are not without blemish they called for the imposition of the maximum custodial sentence."

In Archbold - Pleading Evidence and Practice in Criminal Cases (1992) in Chapter 20 under the caption 'Sexual Offences' in section X1 'Unnatural Offences' is dealt with at para 20-154 which in United Kingdom comprises of 'Buggery', 'Indecent Assault on a man' and 'Gross Indecency'. The one akin to the offence of 'unnatural offence' in our Penal Code is called 'buggery'.

After reading a number of English cases and the sentences passed in them, I find that there are not sufficient guidelines to assist us in the context of situation in Fiji. Archbold (ibid, 20 - 166) under 'sentencing guidelines' refers to R v Willis (1974) 60 Cr. Appl R.146 where it is stated that 'the bracket of sentencing in cases of homosexual offences against boys with neither aggravating or mitigating factors ... as being three to five years and has not been lowered by subsequent cases [R v White (1990) 12 Cr. App. R. (S) 30]' Sentencing in Willis (supra) is not of much assistance in this case as far as the sentence is concerned for there are aggravating factors in the present case and these have to be seriously considered. The victims are of tender age, very vulnerable, subjected to such degrading behaviour and allowed to endure the pain to which no attention was paid by the accused and worst of all threatened to be killed if they reported. The accused was in a position of responsibility towards these child victims in the Fijian Village context where the offence took place. The effect on the victims does not require further elucidation.

A person indulging in this animal-like behaviour has to be put away from society for a long time as a deterrent to others minded to act in the manner the accused did. No one would like to see his/her child suffer such indignity and one only has to put oneself in the position of these victims (children) to realize what they must have gone through at the hands of the accused.

In dealing with the question of appropriate sentence I think I ought to refer to the case of Attorney-General's Reference No. 7 of 1997 (Robert Fearon) [1998] 1 Cr.App. R. (S) C.A. 268 which is a case of buggery of young boys over an extended period and it dealt with adequacy of sentence. There Lord Bingham C.J. referred to cases cited by counsel on sentences and I think they are worth bearing in mind for the purposes of this case. He said:

"He has drawn our attention to a series of cases, including Liddle (1985) 7 Cr. App. R. (S.) 59, in which on a plea of guilty a sentence of 10 years imprisonment was upheld; Hutichson (1988) 10 Cr. App. R. (S.) 50, in which on a plea of guilty a sentence of 14 years imprisonment was reduced to 10; Pearce (1988) 10 Cr. App. R. (S.) 331, in which a sentence of eight years imprisonment on a plea of guilty was upheld; Attorney-General's Reference No. 4 of 1993 (Bingham) (1994) 15 Cr. App. R. (S.) 205, in which on a plea of guilty a sentence of three years imprisonment was increased to five in reliance on section 2(2)(b) of the 1991 Act; and Attorney-General's Reference No. 9 of 1994 (Groves)(1995) 16 Cr. App. R. (S.) 366 in which on a plea of guilty a sentence of six years imprisonment was increased to nine.

In response, counsel for the offender has referred to additional cases. She has drawn our attention to Willis (1974) 60 Cr. App. R. 146, in which a sentence of five years imprisonment on a plea of guilty was upheld; to Attorney-General's Reference No. 43 of 1994 (Smith) 1995) 16 Cr. App. R. (S.) 815, in which a sentence of three-and-a-half years imprisonment was increased to seven years on a plea of guilty; to Attorney-General's Reference No. 9 of 1996 (Johnson) [2008] EWCA Crim 2523; [1997] 1 Cr. App. R. (S.) 113, in which a sentence of eight years' imprisonment was increased to 11 on a plea of guilty, the Court relying on section 2(2)(b) of the 1991 Act; and finally, to Simpson (1981) 3 Cr. App. R.(S.) 345, in which on a plea of guilty a sentence of nine years imprisonment was redued to seven.

As far as the two local cases are concerned, which were referred to by Mr. Rabuku, I have not lost sight of them. The cases are Viliame Karawa v State (Labasa Crim. App. No. 10 of 1990, Fatiaki J) and Iosefo Lutuvou v State (Labasa Crim. App. No. 1/2001, Pathik J).

In sentencing in this case, the Court has to give sufficient credit for confessing at an early stage and pleading guilty. There are no other mitigating features as I can see The boys were 7, 8 and 9 years of age when the offence took place, thus in my view, bearing in mind the gravity of the offence and other matters I have indicated a starting point of not less than 7 years imprisonment is appropriate for the offence on children up to 12 years of age.

The accused was convicted on 9 August 2001 and has been and still is in custody since and in imposing an appropriate sentence his time in custody i.e. eight and a half months will be taken into account. He is sentenced to imprisonment for 6 years on each count. The sentences will run concurrently, one with the other. The total effect will be therefore that the accused will have to serve a sentence of 6 years from now on after having been given credit for the time spent in custody.

D. Pathik
Judge

At Labasa
23 April 2002