State v G.P [2011] FJHC 358; HAC008.2011 (24 June 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTON

Labasa Criminal Case No: HAC008 of 2011

STATE

v.

G. P.

Hearing: 2 June 2011
Sentence: 24 June 2011

Counsel: Mr. M. Korovou for State
Ms N. Nawasaitoga for Juvenile

FINDING OF GUILT AND ORDER

[1] The proceedings relate to a juvenile offender. I refer to him by his initials, G.P., as his identity has been suppressed from publication by an order I made on 2 June 2011 under section 12 of the Juveniles Act. Section 20 prohibits the use of the word conviction and sentence in relation to a juvenile, that is, a person under the age of 17 years at the date of the offence. Under the Act, conviction is referred as a finding of guilt and sentence is referred as an order made upon such finding.

[2] The Juveniles Act creates a special procedure to deal with juvenile offenders. The provisions of the Act are entirely consistent with Fiji's obligation under the UN Convention on the Rights of the Child (CROC). Fiji ratified the CROC on 12 September 1993.

[3] I called for a Social Welfare Report on the juvenile before I made an order against him following his guilty plea. On 17 June 2011, Senior Probation Officer, Northern filed a report, which I find it to be useful.

The offence

[4] The charge is murder. Murder is the most serious offence.

[5] Due to the seriousness of the offence, I took extra measures to ensure that the juvenile understood the consequences of pleading guilty to a serious charge of murder. Legal aid represented him and in all hearings a guardian of the juvenile was present with him.

Guilty plea

[6] The juvenile maintained his guilty plea since his arraignment. Counsel for the juvenile confirmed this. I personally enquired with the juvenile in the presence of his father whether he was freely and voluntarily pleading guilty. The juvenile assured me that he was entering his plea of guilty freely and voluntarily, without any pressure, inducement or promise.

[7] I am satisfied that the juvenile's guilty plea was made freely and voluntarily. I record a finding of guilt against him. I now proceed to make an order against him.

Circumstances of offence

[8] Regard must be made to the circumstances of the offence. The juvenile and the victim were neighbours in a rural community in Labasa. At the time of the offence the juvenile was 14 years old. He was a form four student. The victim was 13 years old and was a student as well.

[9] The juvenile was a frequent visitor to the victim's home. As they reached puberty they started having sexual intercourse. According to the juvenile he learnt about sex by watching pornographic movies with his friends.

[10] The juvenile and the victim had sexual intercourse on a number of occasions. The last time they had sexual intercourse was on 2 February 2011. The juvenile became worried about the victim becoming pregnant. He feared that everyone in the community will come to know about his sexual relationship with the victim if she became pregnant.

[11] On 3 February 2011, the juvenile took the victim to an isolated spot near a creek away from their homes under the pretext of seeing a doctor. When they reached the creek, he strangled her using his hands and then pushed her head underwater to stifle her screams until she no longer moved. He returned home and did not tell anyone of the incident.

Sentencing principles

[12] Counsel for the State and counsel for the juvenile have helpfully referred to a number of provisions in the Juveniles Act and to local and overseas cases, for guidelines. I bear in mind that each case is different and a range of orders are available to juvenile offenders.

[13] Reference is made to section 31(1) of the Juveniles Act. Section 31(1) provides:

"Where a juvenile is found guilty of murder, of attempted murder or of manslaughter, or of wounding with intent to do grievous bodily harm, and the court is of the opinion that none of the other methods by which the case may legally be dealt with is suitable, the court may order the offender to be detained for such period as may be specified in the order, and where such an order has been made, the juvenile shall notwithstanding anything in the other provisions of this Act, be liable to be detained in such place and on such conditions as the Minister may direct.

(2) A juvenile detained pursuant to the directions of the Minister under the provisions of this section shall, while so detained, be deemed to be in lawful custody.

(3) Any person detained may, at any time, be discharged by the Minister on licence which licence may be in such form and may contain such conditions as the Minister may direct, and may at any time be revoked or varied by the Minister.

(4) Where a licence has been revoked under the provisions of subsection (3), the juvenile to whom the licence related shall return to such place as the Minister may direct, and, if he fails to do so, may be apprehended without warrant and taken to that place."

[14] Section 31 creates an exception to the mandatory life sentences. If a juvenile is found guilty of murder, the court has discretion to impose a term of imprisonment or detention of any length, including life imprisonment.

[15] Further, regardless of the length of the term imposed, the Minister may release the offender on licence at any time.

Social Welfare Report

[16] According to the Social Welfare Report, the juvenile is of low risk to the community. Both the probation officer and the juvenile's father spoke about the behavior of the juvenile. They say that the juvenile is well behaved and is an obedient child. Since his detention at the Boys Centre in Suva, the juvenile had been going through counseling with the Pacific Counseling and Social Services Centre. The report states that the juvenile is responding to counseling. He is genuinely remorseful for his conduct and that he realizes the pain he has caused to the victim and her family.

Victim Impact

[17] The State has not tendered any victim impact statement. However, I cannot ignore the fact that the victim was a child as well. The tragic killing has created distrust among two families and the community. I am sure the victim's family wants justice to be done. Such expectation is legitimate when you lose a child. I can only hope that time will heal and restore the broken relationships between the two families.

Aggravating factors

[18] The aggravating factors are the deception that was used to lure the victim away from her home before the killing and the breach of trust that she placed on the juvenile.

Mitigating factors

[19] The mitigating factors are the early guilty plea, cooperation with the police, genuine remorse, youth and previous good character of the juvenile. Further, the juvenile has been at the Boys Centre since 8 February 2011.

Order

[20] I do not think this is a case I should impose a life sentence. Clearly, the killing is not the worst of its type. There is no evidence that the juvenile is a threat to the community.

[21] On the other hand, I must denounce the conduct of the juvenile and deter him and others from committing the evil act of taking another human life. I think a detention order is just and appropriate on the facts of this case.

[22] After taking all these matters into account, I order a period of detention for 6 years at the Boys Centre. I have decided not to fix any period of detention which the juvenile must serve. The Minister may release the juvenile at any time before the expiration of the detention period. I recommend that the juvenile be given vocational training and education during the detention period.

So Ordered.

Daniel Goundar
JUDGE

At Suva
24 June 2011

Solicitors
Office of the Director of Public Prosecutions for State
Office of the Director of Legal Aid Commission for Juvenile Accused