State v Raibevu - Sentence [2012] FJHC 1040; HAC27.2011 (27 April 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No. HAC 27 of 2011

BETWEEN:

STATE

AND:

JONE TEYANA RAIBEVU

BEFORE : Mr. Justice P. K. Madigan
COUNSEL : Ms. L Koto for the State
Accused in person

Date of Hearing : 25, 26 April 2012
Date of Summing Up : 26 April 2012
Date of Judgment : 27 April 2012
Date of Sentencing : 27 April 2012

SENTENCING

1. The accused was charged with the following two offences:
   

First Count

Statement of Offence (a)

DEFILEMENT OF A GIRL BETWEEN THIRTEEN AND SIXTEEN YEARS OF AGE: Contrary to Section 156 (1) (a) of the Penal Code, Act 17.

Particulars of Offence (b)

JONE TEYANA RAIBEVU, on the 21st day of January 2010 at Valelevu in the Central Division, had unlawful carnal knowledge of LUSIA MAIQALAU, a girl being above the age of thirteen years and under the age of sixteen years.

Second Count

Statement of Offence (a)

DEFILEMENT OF A YOUNG PERSON BETWEEN THIRTEEN AND SIXTEEN YEARS OF AGE: Contrary to Section 215 (1) of the Crimes Decree, No. 44 of 2009.

Particulars of Offence (b)

JONE TEYANA RAIBEVU, on the 3rd day of May 2010 at Valelevu in the Central Division, had unlawful carnal knowledge of LUSIA MAIQALAU, a girl being above the age of thirteen years and under the age of sixteen years.

2. He was found guilty after trial of both offences.
   
3. The simple facts relating to both charges are that on the 21st January 2010, the accused had sex with a girl aged 15 years and seven months. On the 3rd May 2010 he again had sex with the same girl. The girl was from the same settlement; she had left school and was attending to domestic duties for her handicapped mother.
   
4. In mitigation the accused says that he is 61 years old and is a retired civil servant. He is separated with 5 children and 15 grandchildren. The victim in this case had become pregnant and given birth to a boy and he wanted to care for the mother and child. He claims that the girl was a willing partner and that they had sex on numerous occasions, each time at the instigation of the girl. He apologises to the court and claims to love the girl.
   
5. The maximum penalty for defilement is ten years' imprisonment; and the usual range of sentences is from a suspended sentence for protagonists in a "virtuous relationship" whilst the higher end of the range is for offenders who are older and in a position of trust. (Rokowaqa CA 37/2004, Kabaura HAC 117/2010). In the case of Donumainasuva CA 32/2001, Shameem, J said "The offence is clearly designed to protect young girls who have entered puberty and experiencing social and hormonal changes, from sexual exploitation."
   
6. Although the accused professes to be in love with the victim and to want to support her and her child, the court cannot condone the defilement of a fifteen year old by a 61 year old neighbor. It is unrealistic for the accused to believe that this could be a virtuous relationship. The evidence of the girl suggests otherwise. Although he is not in a position of trust, he is nevertheless an elder in the settlement who should be setting an example. He has known the victim for more than 12 years since she was small and unsurprisingly the assessors did not believe that he thought she was seventeen years old. His claims that the girl was promiscuous and consenting are irrelevant to the offence.
   
7. In the circumstances I take a starting point of four years imprisonment, which reflects the age difference. I deduct one year from that term to reflect the unusual and unsustainable claim of love and a wish to support the girl and her child as well as for his clear record for the last ten years.
   
8. The accused will serve a term of imprisonment of three years with a minimum period of two years before he is eligible for parole.
   

   Paul K. Madigan

   Judge

At Suva,

27 April, 2012.