State v J.M. [2011] FJHC 751; HAC171.2010 (18 November 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 171 OF 2010S

STATE

v

J. M.

Counsels: Mr. S. Vodokisolomone for the State
Ms. S. Vaniqi for the Accused
Hearings: 11th and 13th May, 2011
Sentencing: 18th November, 2011

SENTENCE

1. On 11th May, 2011, in the presence of your counsel, you pleaded guilty to the following offence:

Statement of Offence

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

Particulars of Offence

J. M. on the 22nd day of August, 2010, at Verata, Tailevu, in the Central Division, had carnal knowledge of a girl namely L. T. without her consent.

2. The prosecutor read the summary of facts. They were as follows. You were aged 14 years old on 22nd August 2010. At the time, you were in Class 8 in a school in Tailevu. The female complainant was aged 5 years old, at the time. Both of you resided in the same village, and are related to each other. Around 10am on 22nd August, 2010, the 5 year old victim when to their kitchen, in the village, to get some fruit.

3. You entered the kitchen, closed the windows, pulled down the victim's clothes, and inserted one finger into her anus. You then moved your finger in a rhythm. The victim's mother found the matter out, and reported it to police. The victim was medically examined. Bruises and slight cuts were found around the anal area. You were caution interviewd by the poilce. You admitted the offence. You were later charged for the offence of rape.

4. The court checked with your counsel to see that you are admitting to the offence of rape. After the coming into force of the "Crimes Decree 2009", on 1st February 2010, to insert someone's finger into a person's anus, without that person's consent, amounts to rape. Previously, it was an indecent assault. A child under 13 years old is incapable of giving consent, in a case of rape. Your counsel admitted, on your behalf that, you inserted a finger into the victim's anus, knowing she was incapable of giving consent. As a result, I found you guilty as charged.

5. I have taken into account you written plea in mitigation. I understand you are attending Form 3 education at Suva Grammar School. I understand you are the eldest in your family, and often assisted your mother, in the daily family chores. You are a 1st offender. I understand you committed this offence, after watching blue movies. You spent 4 weeks while been remanded at Boys Centre.

6. Rape is a serious offence, and it carries a maximum sentence of life imprisonment: section 207(1) of Crimes Decree 2009. For the rape of an adult, the tariff is a sentence between 7 to 15 years imprisonment. For the rape of a child, the tariff is a sentence between 10 to 15 years imprisonment: see Mohammed Kasim v The State, Criminal Appeal No. 21 of 1993, Fiji Court of Appeal; State v Navuniani Koroi, Criminal Appeal No. HAA 0050 of 2002, High Court, Suva; Mark Lawrence Mutch v The State, Criminal Appeal No. AAU 0060 of 1999, Fiji Court of Appeal; State v V.V., Criminal Case No. HAC 084 of 2009, High Court, Suva and State v. Nacanieli Marawa, Criminal Case No. HAC 0016 of 2003, High Court, Suva. However, a young person found guilty of rape, cannot serve more than 2 years imprisonment pursuant to section 30(3) of the Juvenile Act, Chapter 56.

7. The aggravating factors in your case were as follows:

(i) You were 14 years old, at the time, and the victim was 5 years old – an age difference of 9 years. You were related to each other. Although, you are a juvenile, in a village setting, you are expected to look after those who are younger than you. In other words, you are expected to supervise those who are younger than you. You are in a position of trust, regarding this 5 year old relative of yours. However, you abused this trust by inserting your finger into her anus, at the time.

8. The mitigating factors in your case were as follows:

(i) You co-operated with the police during their investigation, that is, you confessed when caution interviewed;

(ii) You pleaded guilty to the offence, and therefore saved the court's time, and avoided the need to call the child complainant to relive her ordeal in the courtroom, by giving evidence;

(iii) You are a 1st offender, and oldest in a family of 5 children, and often assisted your mother in the family daily chores;

(iv) You have been remorseful, and have apologized to the complainant's family, who have accepted your apology;

(v) You are a form 3 student at Suva Grammar School.

9. In State v. Y.M, Criminal Case no. HAC 002 of 2011, High Court, Labasa, His Lordship Mr. Justice P. K. Madigan said the following, "...The Court's duty to the community is to pass harsh sentence for crimes of sexual abuse against children. This duty must be balanced nevertherless 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..." (page 2). I agree entirely with His Lordship's view.

10. In this case, I start with a sentence of 12 months imprisonment. For the aggravating factors, I increase the sentence by 4 months, to 16 months imprisonment. For the mitigating factors, I decrease the sentence by 10 months, to a sentence of 6 months imprisonment. The 6 months prison sentence is suspended for 2 years.

11. 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:

(i) To live and work where the probation officer directs.

(ii) To meet his probation officers at times dictated by the officers.

(iii) That any breach of conditions laid down by the officers be reported to this Court.

(iv) That he be appropriately counselled and offered further education.

12. The suspended sentence and probation orders are both explained.

Salesi Temo
JUDGE

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