State v Kartik [2012] FJHC 840; HAA003.2012 (7 February 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No. HAA 003 /2012

BETWEEN:

STATE
Appellant

AND:

SHIWAN KARTIK
Respondent

BEFORE: Mr. Justice P. K. Madigan

COUNSEL: Ms A. Vavadakua for Appellant
Respondent in Person

Date of Hearing: 1st February 2012

Date of Judgment: 7th February 2012

JUDGMENT

1. On the 9th June 2010 in the Magistrates Court at Suva the respondent entered a plea of guilty to the following charge:
   

Statement of Offence (a)

ABDUCTION OF GIRL UNDER THE AGE OF 18 YEARS WITH INTENT TO HAVE CARNAL KNOWLEDGE: Contrary to Section 211[1] of the Crimes Decree No. 44 of 2009.

Particulars of Offence (b)

SHIWAN KARTIK on the 6th day of April 2010, at Nasinu in the Central Division unlawfully abducted ASHNA ARTIKA SAMI, an unmarried girl under the age of 16 years, 11 months and 18 days out of the possession and against the will of her parents.

2. The facts of the case were that on the 6th day of April 2010 at Nasinu, he had taken away a girl of 16 years, eleven months from her home to a motel in Suva where they spent the night before he returned her at 11 am the next morning. The girl's parents had already reported her missing and the accused and the girl went to Nakasi Police Station to help with enquiries. The accused admitted the offence to Police under caution. He admitted that he took the girl away with intent to have carnal knowledge of her.
   
3. In mitigation the accused told the Court that he is 22 years old and worked as an electrician earning $180.00 per week. He lives with his parents and supports them. He claims that he and the girl are friends and it is his intention to marry her when she reaches 18 years of age.
   
4. The learned Magistrate found that it was an aggravating feature that there was an age difference of 6 years between the two as well as interference with the "possessory rights" of the parents. However, that second "aggravating feature" is subsumed in the particulars of the offence.
   
5. The maximum penalty for this offence is 5 years imprisonment but the tariff is from 12 months to three years.
   
6. In sentencing the accused, the learned Magistrate after making adjustments for mitigating and aggravating features arrived at a sentence of four years imprisonment which she suspended for five years.
   
7. The state appeals the sentence on the ground that it is wrong in law.
   
8. By the terms of Section 26(2) (b) of the Sentencing and Penalties Decree 2009, a Magistrate may only suspend a sentence that does not exceed two years. The state quite properly therefore claims that the sentence is wrong in law.
   
9. Pursuant to Section 256(2) (a) of the Criminal Procedure Code 2009, I confirm the conviction ordered below but quash the irregular sentence. I proceed to sentence afresh.
   
10. It is significant that the accused and the girl have known each other for

some time and wish to marry when legally able to do so. The accused is a first offender of young age, and no purpose would be served incarcerating him for this offence. The offence exists to protect young girls from predatory men with lascivious intent; but this was not the situation here. Despite the age difference it was the wish of both parties to spend the night together.

11. I take a starting point of three years imprisonment and deduct one year

for the plea of guilty and co-operation with the Police. I add 6 months for the "age difference" and deduct that 6 months for his youth and clear record. The resultant sentence is one of two years.

12. The sentence of two years will be suspended for a term of two years.
    
13. Suspension explained.
    

Paul K. Madigan
JUDGE

At Suva
7th February 2012