State v Y.M. [2011] FJHC 58; HAC 002.2011 (10 February 2011)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION
(Sitting as a Juvenile Court)

CRIMINAL CASE NO. HAC 002 OF 2011

BETWEEN:

STATE

AND:

Y.M.
(a juvenile aged 16 years 10 months)

Counsel: Mr. T. Ravuniwa for the State
Miss M. Lemaki (LAC) for Accused

Date of Hearing: 4 and 9 February 2011
Date of Ruling: 10 February 2011

SENTENCE

[1] On the 4th February, in this Court, the juvenile entered a plea of guilty to three counts of oral rape contrary to section 207(2)(c) of the Crimes Decree 2009.

[2] He agreed a set of facts. The facts reveal that on the 9th January 2011, three boys aged 7, 4 and 4 were playing at the accused's home when the accused called them into his room. The accused undressed and ordered each of the boys to commit a sexual act on him. After the third boy committed such act, the accused ejaculated. He told the boys to go home and threatened them not to tell anybody.

[3] One of the boys told his mother and the matter was reported to the Police.

[4] Upon hearing the juvenile plead to the changes and agreeing to the facts, this Court (mindful of section 20 of the Juvenile Act Cap 56) found the charges proved against him.

[5] Acts of fellatio (as these acts indeed were) are now, under the new Decree, classified as rape and all of the prior authorities for rape sentence come into play.

[6] An adult committing this offence against young child victims would be facing a term of imprisonment of eight to twelve years, however the Juvenile Act constrains me to a maximum term of 2 years. (s.30(3)).

[7] It is extremely sad that these three young children were corrupted in such a manner. Almost certainly they were sexually innocent and as a result they will have been harmed psychologically and emotionally and will suffer for it when they reach their own sexual maturity.

[8] It is well known that the libido of a 16 year old boy is relentless, but that can provide no excuse for exercising his lust on very young children.

[9] The Courts duty to the community is to pass harsh sentences for crimes of sexual abuse against children. This duty must be balanced nevertheless by the Court's duty to keep children away from the influence of hardened criminals, and to effect the legislature's wish not to have children imprisoned for more than 2 years.

[10] There has been placed before me a Social Welfare Report giving the background of this juvenile and provides mitigation for the offence. I am told he is truly remorseful and that he seeks forgiveness from the victims' families. His parents are both ill and unemployed and he is the family breadwinner through occasional labouring work. He could not proceed past Class IV at school because of lack of family finances. He has been very co-operative with the Police, and has entered a plea of guilty at first opportunity. His parents are supportive and wish to have supervision over him for the immediate future.

[11] For each offence, I take a starting point of 12 months' imprisonment. For his early plea of guilty, I reduce that to a term of eight months. For his additional and mitigating features, I deduct two months, leaving a total term of imprisonment of six months to be served concurrently. In the circumstances, I order that this term be suspended for a period of two years.

[12] In addition, I order that he be placed on probation for a term of two years from today and the terms of the probation be as follows:

1. to live and work where the probation officer directs.
   
2. to meet his probation officers regularly at times dictated by the officers.
   
3. that any breach of conditions laid down by the officers be reported to this Court.
   
4. that he be appropriately counselled and offered further education.
   

[13] The suspended sentence and probation order are both explained.

P.K. Madigan
Judge

At Labasa
10 February 2011