IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0037 OF 2002S

Between:

STATE
Appellant

And:

MELI ROQICA;
JOSAIA QOVUNITOKALAU; and
TAITUSI YABAKI
Respondents

Hearing: 4th April 2003
Judgment: 9th April 2003

Counsel: Ms S. Shah for State
No appearance for Respondents

JUDGMENT

On the 11th of September 2001, the Respondents were charged with the following offences:

FIRST COUNT

Statement of Offence

DEFILEMENT OF A GIRL BETWEEN 13 AND 16 YEARS OF AGE: Contrary to section 156(1)(a) of the Penal Code, Cap 17.

Particulars of Offence

Meli Roqica, between the 1st day of September and the 15th day of September, 2001 at Naovuka, Gau in the Eastern Division, unlawfully had carnal knowledge of [the complainant] a girl aged 13 years 7 months.

SECOND COUNT

Statement of Offence

DEFILEMENT OF A GIRL BETWEEN 13 AND 16 YEARS OF AGE: Contrary to section 156(1)(a) of the Penal Code, Cap 17.

Particulars of Offence

JOSAIA QOVUNITOKALAU between the 15th day of September 2001 and the 30th of September, 2001 at Naovuka, Gau in the Eastern Division, unlawfully had carnal knowledge of [the complainant] a girl aged 13 years 7 months.

THIRD COUNT

Statement of Offence

DEFILEMENT OF A GIRL BETWEEN 13 AND 16 YEARS OF AGE: Contrary to section 156(1)(a) of the Penal Code, Cap 17.

Particulars of Offence

TAITUSI YABAKI between the 1st day of January 2002 and 15th day of January 2002, at Naovuka, Gau in the Eastern Division, unlawfully had carnal knowledge of [the complainant] a girl aged 13 years 7 months.

The Respondents appeared in the Magistrates’ Court on the 20th of February 2002 and pleaded guilty. All were unrepresented.

The facts were that between the 1st of September 2001 and the 15th of September 2001, the victim a girl then aged 13 years and 7 months, met the 1st Respondent, who suggested that she had sexual intercourse with him. She was reluctant at first but was persuaded to go into the bush with him where they had sexual intercourse. Between the 15th and 30th of September 2001, the victim went to the village store to buy groceries. There, the 2nd Respondent approached her, and asked her to have sexual intercourse with him. She agreed, and they went to a kitchen in the village where they had sexual intercourse. Between the 1st of January and the 15th of January 2002, the victim was attending a feast in the village when the 3rd Respondent approached her and asked her for sexual intercourse. She agreed and they went to a kitchen where they had sexual intercourse.

The victim’s mother heard rumours of these sexual activities, and she confronted her daughter. On being told what had happened, she reported the matter to the police. The police interviewed the three Respondents. All three admitted the acts of sexual intercourse. These facts were admitted.

In mitigation, the 1st Respondent said that he was 20 years old, and unemployed. He was single and expressed remorse. He said he knew the victim was in Class 8 at Lamiti Primary School, but said he did not realise that it was an offence to have sexual intercourse with an under-aged girl. He said he had apologised to her family in the traditional way.

The 2nd Respondent said that he was 19 years old, and a farmer. He said he was ignorant of the law and he had taken advantage of the victim’s willingness to have sexual intercourse with her. He said he had apologised in the traditional way and was sorry for what had happened.

The 3rd Respondent was 17 years old and a farmer. He was also single. He expressed remorse and said that he never knew that what he did was against the law.

The learned Magistrate delivered his sentence on the 20th of February 2002. After canvassing the facts, and the mitigation, he said that this was not a case of exploitation by an older man of a very young girl, but was a case of “virtuous friendship” between victim and offender. He said there were no aggravating factors and that the acts of sexual intercourse took place at different times with the victim’s consent. He found that on the facts it was inappropriate to pass sentences of a punitive nature and bound each over for $200.00 each to keep the peace for 24 months and for each to pay $35.00 court costs.

The Director of Public Prosecutions appeals against these sentences, on the grounds that they were wrong in law and manifestly lenient.

The hearing of this appeal was delayed because the DPP was finding it difficult to effect service and to have the affidavits of service sworn. After several adjournments, this appeal was finally heard on the 4th of April 2002. The Respondents had been served with the notices of hearing but chose not to attend, sending a message to the Registry that they could not afford the cost of the fare from Gau. I proceeded without them.

Counsel for the State submitted that the maximum sentence for the offences, was 5 years imprisonment and that these were cases of the sexual exploitation of a 13 year old child by older men. She said that a message should go out to the community that such behaviour was not acceptable. Finally she said that a custodial sentence was called for.

In Elia Donumainasuva vThe State Crim. App. No. HAA0032 of 2001, I found the sentences for the defilement of girls between the ages of 13 and 16 ranged from a suspended sentence where victim and offender were of the same or similar age and were in a relationship, to three to four years imprisonment where the offender is older and was in a trusted position in relation to the victim. In that case, the offender was 22 years old, and the victim was 15. They were in a relationship. I upheld a sentence of 2 years imprisonment relying on R v Taylor and Others 64 Cr. App. R. 182, a case in which Lord Justice Lawton distinguished between cases of “virtuous friendship” between people of the same age which ended in sexual intercourse and cases where an older man in a supervisory capacity set out to seduce a girl under 16.

The facts of this case are more reprehensible than those of Elia Donumainasuva (supra), and yet the sentences passed were dramatically different. Firstly, the offenders were not in a relationship with the victim. They were young men who set out to exploit the sexual willingness of a very young girl. There was no evidence at all of a “virtuous friendship” leading to sexual intercourse. Secondly, the victim was only 13 years old, and sentences passed, should normally reflect the tender years of the victim. Thirdly, despite the evidence led of good character from a church elder, Mr Joeli Kete, and the evidence of traditional apology, these incidents clearly caused tension and anger in the village community. The facts, and the circumstances of the offending, demanded a custodial sentence. The sentence passed was therefore wrong in principle and manifestly lenient.

In my view, a starting point of 2 years imprisonment is appropriate. Mitigating factors are the apology, the ignorance of the law, previous good character (I disregard the 3rd Respondent’s previous conviction for burglary) and the guilty pleas.

Aggravating circumstances are the age of the victim, the fact that the acts did not take place in a relationship but were acts of sexual exploitation and the four to seven year age gap between offender and victim. In all the circumstances I arrive at a sentence of 12 months imprisonment.

These offences were committed 1½ years ago and the Respondents have already, in effect, served 12 months of their binding-over sentence. Taking that into account I halve their sentences to 6 months imprisonment each. This is not an appropriate case for suspension, and I decline to suspend their sentences.

The sentences of the three Respondents are quashed and substituted with 6 months imprisonment each to run from the day the committal warrants are executed. This appeal succeeds.

Nazhat Shameem
JUDGE

At Suva
9th April 2003