State v T.V.K [2011] FJHC 732; HAC014.2011 (12 October 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 014 OF 2011
CRIMINAL CASE NO. HAC 011 OF 2011

BETWEEN:

STATE

AND:

1. T.V.K
First Juvenile – [HAC 014/2011]

2. A.N.K
Second Juvenile – [HAC 011 of 2011]

Counsel: Ms. S. Hamza for the State
Mr. S. Waqainabete for both Accuseds

Date of Sentencing: 12th October 2011

SENTENCE

[1] HAC 014 of 2011 and HAC 011 of 2011 were originated from one complainant. The victim P.B. had complained that these two juveniles had committed rape on her by inserting finger on her vagina. The Director of Public Prosecutions had preferred two separate charge sheets against these two juvenile persons. After carefully considering all, these two cases were consolidated for the purpose of sentencing only.

[2] Because both the juveniles and the victim are under the age of 18 years, their names are suppressed to protect their identity.

[3] The Director of Public Prosecutions had preferred a following charge against the 1st and 2nd juvenile above named.

"T.V.K. is charged with the following offence:

Statement of Offence (a)

RAPE: Contrary to section 207 (1) (2) (b) of the Crimes Decree No. 44 of 2009.

Particulars of Offence (b)

T.V.K., between the 1st day of January 2010 and 31st day of December 2010 at Nasinu, in the Central Division penetrated the vagina of P.B. with his finger, without her consent."

[4] "A.N.K. is charged with the following offences:

First Count

State of Offence (a)

RAPE: Contrary to Section 207 (1) (2) (b) of the Crimes Decree No. 44 of 2009.

Particulars of Offence (b)

A.N.K., between the 1st day of January 2010 and 31st day of December 2010 at Nasinu in the Central Division penetrated the vagina of P.B. with his finger, without her consent.

Second Count

Statement of Offence (a)

SEXUAL ASSAULT: Contrary to Section 210 (1) (a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence (b)

A.N.K., between the 1st day of January 2010 and 31st day of December 2010 at Nasinu in the Central Division unlawfully and indecently assaulted P.B."

[5] The 1st juvenile was originally represented by his father M.G. Considering the nature of the offence this Court instructed the juvenile to get legal assistance from the Legal Aid Commission. Subsequently Counsel from Legal Aid commission appeared for the juvenile.

[6] Initially the 1st juvenile pleaded not guilty and the matter fixed for trial on the 29th August 2011. When the case was mentioned on the 11th August the juvenile informed the Court through his Counsel that he wishes to change his plea. Court explained the consequences to the 1st juvenile and his father in the presence of their Counsel. After everything was explained the 1st juvenile pleaded guilty to the charge and admitted the summary of facts. The father and the Counsel confirmed that the plea tendered was after due considerations.

[7] According to the summary of facts the offence had occurred between 1st January 2010 to 31st December 2010. The families of 1st juvenile and the victim are known to each other. One day when she was playing with her friends he had asked for a kiss. She had refused then he had pulled her to his father's bedroom and removed her panty. The juvenile had licked her vagina and inserted his finger into the vagina.

[8] The 1st juvenile was born on 16th June 1995. As at 2010 he was about 15 years old. According to the medical examination form the victim P.B. was born on 25/10/2003. She was approximately 6 years old.

[9] The 1st juvenile had pleaded guilty to one count of Rape punishable under section 207 (1) (2) (b) of the Crimes Decree.

[10] The 2nd juvenile A.N.K. appeared with his mother S.B. On the 28/01/2011 they were advised to get Legal assistance from the Legal Aid Commission. After few mention dates Counsel from the Legal Aid Commission represented this juvenile also. On the 22nd August 2011 the 2nd juvenile pleaded guilty to one Count of Sexual Assault and one Count of Rape. His mother and his legal Counsel confirmed that he tendered his plea after due consideration.

[11] The 2nd juvenile was born on 05/10/1995 at the period of the offence he was about 15 years old.

[12] Rape defined in Section 207 (1) (2) (b) of the Crimes Decree states as follows:

"Any person who rapes another person commits an indictable offence...A person rapes another person if - the person penetrates the vulva, vagina or anus of the other person to any extent with a thing or a part of the person's body that is not a penis without the other person's consent."

[13] Sexual Assault defined in Section 210 (1) (a) of the Crimes Decree states as follows:

"Any person commits an indictable offence (which is triable summarily) if he or she –

(a) unlawfully and indecently assaults another person."

[14] Counsel for the State submits the Court to consider section 30 of the Juveniles Act and a case authority of State v YM (2011) FJHC 58.

[15] The Counsel for the juvenile persons submits following factors.

(i) Both juveniles are presently schooling and preparing for their Form 4 Fiji Junior Secondary School examinations.

(ii) Progress reports of the 1st juvenile for the 1st and 2nd term were submitted. According to the report it appears he had done fairly well in his examination tasks.

(iii) Both juveniles are first offenders.

(iv) Both juveniles are very young teenage boys.

(v) Incident had happened because of their sexual curiosity.

(vi) The 1st juvenile and his father had apologized to the victim and her parents. Further they had paid a compensation of $150 to the parents of the Victim.

(vii) Similarly the 2nd juvenile and his mother also apologized and paid $150 to the victim and her parents.

(viii) The mother of the victim child who was present in Court on notice confirms that these two juveniles and their family tendered an apology and compensation which was accepted by her and the family.

(ix) Both juveniles are very remorseful.

(x) Both juveniles were pleaded guilty before the trial.

Law

[16] Considering section 20 of the Juvenile Act states as follows:

"The words "conviction" and "sentence" shall not be used in relation to juveniles and any reference in any written law to a person convicted, a conviction or a sentence shall, in the case of juvenile persons, be construed as including a reference to a person found guilty of an offence, a finding of guilt or an order made upon such a finding, as the case may be."

[17] Section 30 of the Juvenile Act prescribes a maximum sentence of 2 years.

"No child shall be ordered to be imprisoned for any offence...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...A young person shall not be ordered to be imprisoned for more than two years for any offence."

[18] Considering the offence of Rape especially when it is committed on a child, this Court shows no mercy. In the present case both juveniles and the victim falls within the definition of "child" i.e. below 18 years.

[19] Considering the medical examination form, the medical practitioner had not observed any injury on the child victim. Further there is no injury to the hymen of the victim. Further the doctor had not observed any abnormal behavior or features on the victim child.

[20] Article 3 of United Nations Child Rights Charter, of which Fiji is a signatory states as follows:

"1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interest of the child shall be a primary consideration.

2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.

3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision."

(emphasis added)

[21] The concept of the "best interests" of children has been the subject of more academic analysis than any other concept included in the Convention on the Rights of the Child. In many cases, its inclusion in national legislation pre-dates ratification of the Convention, and the concept is by no means new to international human rights instruments. The 1959 Declaration of the Rights of the Child uses it in Principe 2:

"The child shall enjoy special protection, and shall be given opportunities and facilities, by law and by other means, to enable him to develop physically, mentally, morally, spiritually and socially in a healthy and normal manner and in conditions of freedom and dignity. In the enactment of laws for this purpose, the best interests of the child shall be the paramount consideration."

[22] Considering the United Nations Minimum Rules for the Administration of Juvenile Justice ("Beijing Rules") adopted by General Assembly resolution 40/33 of 29 November 1985 describes the Aims of juvenile justice in Section 5 as follows:

" 5.1 The juvenile justice system shall emphasize the well-being of the juvenile and shall ensure that any reaction to juvenile offenders shall always be in proportion to the circumstances of both the offenders and the offence."

[23] Section 4 of the Sentencing and Penalties Decree states as follows:

(1) The only purposes for which sentencing may be imposed by a court are —

(a) to punish offenders to an extent and in a manner which is just in all the circumstances;

(b) to protect the community from offenders;

(c) to deter offenders or other persons from committing offences of the same or similar nature;

(d) to establish conditions so that rehabilitation of offenders may be promoted or facilitated;

(e) to signify that the court and the community denounce the commission of such offences; or

(f) any combination of these purposes.

(2) In sentencing offenders a court must have regard to —

(a) the maximum penalty prescribed for the offence;

(b) current sentencing practice and the terms of any applicable guideline judgment;

(c) the nature and gravity of the particular offence;

(d) the offender's culpability and degree of responsibility for the offence;

(e) the impact of the offence on any victim of the offence and the injury, loss or damage resulting from the offence;

(f) whether the offender pleaded guilty to the offence,

and if so, the stage in the proceedings at which the offender did so or indicated an intention to do so;

(g) the conduct of the offender during the trial as an indication of remorse or the lack of remorse;

(h) any action taken by the offender to make restitution for the injury, loss or damage arising from the offence, including his or her willingness to comply with any order for restitution that a court may consider under this Decree;

(i) the offender's previous character;

(j) the presence of any aggravating or mitigating factor concerning the offender or any other circumstance relevant to the commission of the offence; and

(k) any matter stated in this Decree as being grounds for applying a particular sentencing option.

(3) In sentencing offenders for an offence involving domestic violence, a court must also have regard to —

(a) any special considerations relating to the physical, psychological or other characteristics of a victim of the offence, including —

(i) the age of the victim;

(ii) whether the victim was pregnant; and

(iii) whether the victim suffered any disability;

(b) whether a child or children were present when the offence was committed, or were otherwise affected by it;

(c) the effect of the violence on the emotional, psychological and physical well being of a victim;

(d) the effect of the offence in terms of hardship, dislocation or other difficulties experienced by a victim;

(e) the conduct of the offender towards the victim since the offence, and any matter which indicates whether the offender —

(i) accepts responsibility for the offence and its consequences;

(ii) has taken steps to make amends to a victim, including action to minimise or address the negative impacts of the offence on a victim;

(iii) may pose any further threat to a victim;

(f) evidence revealing the offender's —

(i) attitude to the offence;

(ii) intention to address the offending behaviour; and

(iii) likelihood of continuing to pose a threat to a victim; and

(g) whether the offender has sought and received counselling or other assistance to address the offending behaviour, or is willing to undertake such counselling or seek such assistance.

[24] I wish to consider section 16 of the Sentencing and Penalties Decree.

(1) In exercising its discretion whether or not to record a conviction, a court shall have regard to all the circumstances of the case, including —

(a) the nature of the offence;

(b) the character and past history of the offender; and

(c) the impact of a conviction on the offender's economic or social well-being, and on his or her employment prospects.

(2) Except as provided by any law, a previous finding of guilt without recording a conviction in the exercise of a power under section 15 must not be taken into consideration for any purpose.

(3) A finding of guilt without recording a conviction in the exercise of a power under section 15 —

(a) does not prevent a court from making any other lawful order that is authorised under any law as a consequence of the finding of guilt; and

(b) has the same effect as if a conviction had been recorded for the purpose of—

(i) appeals against sentence;

(ii) proceedings for variation or breach of a sentence; and

(iii) proceedings against the offender for a subsequent offence.

[25] The above section clearly shows that the Child Rights Charter especially, United Nations Minimum Rules for the Administration of Juvenile Justice ("Beijing Rules") have properly complied in Fiji.

[26] I am mindful that any offence especially sexual offences against children should not be tolerated. In the meantime the future of the juvenile should be considered carefully. As stated in the Sentencing and Penalties Decree the punishment should not destroy the future of the juvenile. In this case the evidence before the Court are the 1st and 2nd juveniles are capable students at their respective schools and they have performed well up to now. This offence would have been committed as claimed by the defence Counsel, due to sexual curiosity of that tender age.

[27] Section 207 of the Crimes Decree prescribes maximum sentence for the offence of Rape is life imprisonment.

[28] Section 210 prescribes maximum sentence of 10 years for the offence of sexual assault.

[29] Tariff for juvenile offender was described in State v YM (2011) FJHC 58. In that case Justice Madigan had imposed 6 months imprisonment and the same was suspended for 2 years.

[30] If these juvenile persons were convicted their future will be at stake. That might cause irreparable damage to their entire future. Therefore I act under section 16 of the Sentencing and Penalties Decree and proceed to sentence without entering a conviction.

[31] After considering all I impose the following sentence on the 1st juvenile and 2nd juvenile persons.

(i) You are kept under probation until you reach 18 years of age. The Probation Officer will submit report on every six months.

(ii) You should complete your high school education.

(iii) If you fail to attend school without valid reasons the Probation Officer should promptly report to this Court. If such report is received this Court will reconsider your sentences.

(iv) Probation officer is requested to arrange proper counseling programs for both during this period.

[29] The consequence of the above sentence is explained to both juvenile persons and their respective parents in simple language.

[30] 30 days to appeal.

S Thurairaja
Puisne Judge

At Suva

Solicitors
Office of the Director of Public Prosecution for State
Office of the Legal Aid Commission for both Juvenile persons