State v Ali [2008] FJHC 5; HAA148S.06S (21 January 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 148 of 2006

Between:

STATE
Appellant

And:

YASIN ALI
Respondent

Hearing: 18th January 2008
Sentence: 21st January 2008

Counsel: Mr. A. Ravindra-Singh for State
Respondent in person

SENTENCE

Yasin Ali, you have been convicted for the offence of defilement of a girl between the ages of 13 and 16 contrary to section 156 of the Penal Code. This conviction was entered after an appeal against your acquittal by the DPP succeeded in the High Court. The matter has been transferred to me for sentence.

The original charge was that of rape. The complainant’s evidence was that you had sexual intercourse with her after one Sangeeta pushed her inside a van you were driving, on 1st September 2005. The sexual intercourse took place at Pender Court apartments where you forced her to go. The complainant Nanise Kulavere was then 13 years and 3 months old. On the same day she reported the matter to the police. She was very distressed. The medical report confirmed sexual intercourse. In your sworn evidence in court you denied sexual intercourse. The learned Magistrate accepted that there was sexual intercourse but found that it was consensual. Since Nanise was 13 years old at the time, you committed the offence of having sexual intercourse with a girl between 13 and 16.

Sentence has been delayed because you absented yourself from court after the hearing of the appeal.

In mitigation you have told me that you are 26 years old, that you support your mother and were educated up to Form 3. You express remorse.

This offence is one which has a wide tariff. This is because the circumstances of the offending may vary widely depending on the age gap between offender and victim, and any betrayal of trust. In the English case of R v. Corran; R v. Cutler; R v. Heard; R v. Williams [2005] 2 Cr. App. R(s), it was said that the purpose of the offence is to protect children "from themselves" as well as others who prey on them. A non-custodial sentence will only be appropriate where both offenders are teenagers, and where there was no degree of exploitation. Aggravating factors include any degree of violence, the length and nature of penetration and the consequences to the victim.

I have no information on the consequences to the victim, but at the time of the offence she was only 13. You were 23. This was a case of sexual intercourse by an adult of a child. I start at 3 years imprisonment. Taking into account all relevant factors including the delay in the trial and appeal process, I sentence you to 3 years imprisonment.

Nazhat Shameem
JUDGE

At Suva
21st January 2008