State v A.T [2011] FJHC 344; HAC035.2011S (14 June 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 035 OF 2011S

STATE

v

A. T.
(a juvenile aged 17 years 10 months 3 days)

Counsels : Mr. Y. Prasad for the State
Mr. S. Waqainabete for the accused
Hearing : 5th April and 31st May 2011
Sentencing : 14th June, 2011

SENTENCE

1. On 5th April, 2011, in a closed courtroom and in the presence of your counsel, you pleaded guilty to the following charge:

Statement of Offence

RAPE: contrary to section 207(1) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

A. T. on the 24th day of November, 2010, at N. Village, N., Rewa, in the Central Division, had carnal knowledge of the anus of P. D., aged 4 years of N, Rewa, without his consent.

2. The prosecution read his summary of facts. Briefly, they were as follows. On 24th November, 2010, you were 17 years 10 months 3 days old, while the victim was 4 years old – an age difference of roughly 13 years. Both of you reside at a village in N., Rewa. You were attending Form 6 at the time. Your house was 10 meters away from the victim's. Between 1pm and 2pm, you fried some eggs, and together with some cooked rice, you had lunch. You called the complainant, aged 4 years old, to join you for lunch.

3. After having lunch, you took the complainant into your mother's bedroom. You forcefully took off his trousers and made him lie on a bed. You then forcefully inserted your erected penis into his anus. The victim cried. The victim said, it was painful. The victim's medical report said, he suffered laceration to his anus at 5 o'clock. The victim's grandmother, who was passing by, heard her grandson's cries, and went to check at your house. The victim reported the matter to his grandmother. The police were alerted. You were later caution interviewed. You admitted the offence. You were subsequently charged.

4. After the prosecution read his summary of facts, the court checked with your counsel, to see that you have admitted all the elements of the offence. On your behalf, your counsel admitted that, at the material time, you penetrated the 4 year old complainant's anus with your erected penis, and you knew at the time that, the complainant was incapable of giving his consent, but nevertheless, you went ahead with the unlawful act. On that basis, the court found you guilty as charged.

5. I note that you were a juvenile, at the time of the offence. You were a 1st offender. I have carefully read your written plea in mitigation. I have also read all the papers submitted by you and the prosecution.

6. Rape is a serious offence. The maximum sentence is life imprisonment. For adults, the tariff is a sentence between 7 to 15 years imprisonment: see Mohammed Kasim v The State, Criminal Appeal No. 21 of 1993, Fiji Court of Appeal; Bera Yalimaiwai v The State, Criminal Appeal No. AAU 0033 of 2003, Fiji Court of Appeal; Navuniani Koroi v The State, Criminal Appeal No. AAU 0037 of 2002, Fiji Court of Appeal and Viliame Tamani v The State, Criminal Appeal No. AAU 0025 of 2003, Fiji Court of Appeal.

7. Since the complainant in this case was a juvenile, that is, age 4 years old, the tariff for the rape of children is a sentence between 10 to 15 years: see Mark Mutch v The State, Criminal Appeal No. AAU 0060 of 1999, Fiji Court of Appeal; State v Lepani Saitava, Criminal Case No. HAC 10 of 2007, High Court, Suva; The State v AV, Criminal Case No. HAC 192 of 2008, High Court, Suva; State v VV, Criminal Case No. HAC 084 of 2009, High Court, Suva and State v Waqabaca, Criminal Case No. HAC 139 of 2008, High Court, Suva.

8. The above cases involved adults, who committed the offence of rape against adults and children. What happens when a juvenile commits rape against another juvenile? In this case, a 17 years 10 months 3 days juvenile raped a 4 year old juvenile. Of course, the above cases will have to conform with the restrictions imposed by section 30 of the Juvenile Act, Chapter 56.

9. Section 30 reads as follows:

1) No child shall be ordered to be imprisoned for any offence

2) No young person shall be ordered to be imprisoned for an offence, or to be committed to prison in default of payment of a fine, damages or costs, unless the court certifies that he is of so unruly a character that he cannot be detained in an approved institution or that he is of so depraved a character that he is not a fit person to be so detained.

3) A young person shall not be ordered to be imprisoned for more than two years for any offence.

10. Section 30 of the Juvenile Act permits the imprisonment of young persons on two conditions:

(i) the court certifies that he is of so unruly a character that he cannot be detained in an approved institution; or

(ii) that he is of so depraved a character that he is not a fit person to be so detained.

11. In my view, order has to be established in the juvenile world. Young persons who are approaching adulthood (ie. 18 years old) should not be allowed to exploit the vulnerable in the juvenile world. In this case, a 17 years 10 months 3 days old juvenile takes advantage of a 4 year old juvenile. In my view it is the duty of the court to step in and protect the most vulnerable in the juvenile world. This is especially so, when those who are approaching adulthood (ie. 18 years old), take advantage of the young, by raping them. To commit rape against the young, in my view, is the characteristic of a "depraved character", and a custodial sentence within the ambit of the Juvenile Act is called for. The length of the sentence will depend on the mitigating and aggravating factors.

12. The mitigating factors in your case are as follows. You pleaded guilty to the charge and therefore saved the court's time. You also avoided the need for the complainant to re-live his ordeal in the courtroom. You are a 1st offender. You live with your parents. You have reached Form 6 level education in 2010. You co-operated with police during the investigation.

13. The aggravating factors are as follows. You exploited the naivety of this 4 year old child, when you raped him. The child suffered laceration to his anus. You abused the complainant's trust in you as a relative, when you offended against him.

14. In my view, you are "so depraved a character that you are not a fit person to be detained in an approved institution", and pursuant to section 30(2) of the Juvenile Act, you ought to be imprisoned, as a warning to others, not to repeat what you did in this case. I start with a sentence of 12 months imprisonment. For the aggravating factors, I increase the 12 months by 8 months to 20 months imprisonment. For the mitigating factors, I decrease the 20 months by 8 months, leaving a balance of 12 months. I sentence you to 12 months imprisonment.

Salesi Temo
JUDGE

Solicitors for the State : Office of Director of Public Prosecution, Suva
Solicitors for the Accused : Legal Aid Commission, Suva