State v V.S [2013] FJHC 106; HAC259.2010 (14 February 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 259/ 2010

BETWEEN:

STATE

AND:

1.V.S (First Juvenile)
2. P.T.R (Second Juvenile)

COUNSELS : Ms. A. Lomani for the State
Mr. J.Savou for the Accused

Date of Sentencing Hearing : 19/02/2013
Date of Sentencing : 14/02/2013

SENTENCE

[Names of the accused and the victim are suppressed. Accused will be referred to as First and Second Juvenile and victim will be referred to as R.E.R]

01. The Director of Public Prosecution had preferred the following charges jointly against the Juveniles above mentioned.

FIRST COUNT
Statement of Offence

RAPE: Contrary to sections 207(1) and 207(2) (a) of the Crimes Decree No: 44 of 2009.

Particulars of Offence (b)

First Juvenile and Second Juvenile on the 10th day of October, 2010 at Nasilai Village, Nausori in the Eastern Division penetrated the anus of R.E.R with their penises, without the consent of the said R.E.R.

SECOND COUNT
Statement of Offence

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

First Juvenile and Second Juvenile on the 10th day of October, 2010 at Nasilai Village, Nausori in the Eastern Division penetrated the mouth of R.E.R with their penises, without the consent of the said R.E.R.

02. When the plea was taken on 20/01/2011 both Juvenile pleaded not guilty to their respective charges. On 04/10/2012 counsel for the defense informed court that both Juvenile wants to re-consider their original plea. Accordingly information was read over again and after understanding the charges fully both Juvenile pleaded guilty to their respective charges. Accepting the Plea to be unequivocal this court found them guilty to their respective charges and convicted them under Section 207(1) and 207(2) (a) (b) of Crimes Decree No: 44 of 2009.

03. State Counsel submitted following summary of facts of which both Juvenile admitted.

On Sunday the 10th day of October 2010 at about 08.00 hours R.E.R, 17 years old, Domestic Duties of Nasilai Village, Tailevu (hereinafter referred to as the complainant) was sitting at his grandmother's place when the two Juveniles, (hereinafter referred to as First and second) passed by and called the complainant to visit a vacant house at the edge of the village compound.

The two Juvenile then told the complainant to enter the vacant house, Juvenile 01 then told the complainant to remove his trousers, upon which the complainant obeyed. Juvenile 01 then threatened the complainant with assault if he tells anybody. Juvenile 01 then stood guard at the main door whilst Juvenile 02 forced the complainant to suck his penis. Juvenile 02 forced the complainant's head to his penis before he told the complainant to bend down upon which he penetrated his penis into the complainant's anus. The complainant was crying and tried to run away from the 02 Juvenile but Juvenile 01 grabbed hold of the complainant's body tightly.

Whilst Juvenile 02 was penetrating the complainant's anus, Juvenile 01 came and held the complainant's head down to suck his penis. The complainant turned away from the Juvenile but they forcefully grabbed him. The complainant was crying as he did not like what was being done to him.

After the complainant suck Juvenile 01's penis, Juvenile 01 then proceeded to penetrate the complainant's anus with his penis. Whilst this was occurring, Juvenile 02 came in front of the complainant and forced him to suck his penis.

The Juveniles after the acts then told the complainant to wear his pants. The complainant was crying throughout and after the acts. The complainant went home and did not reveal the incident until his mother asked him. He then relayed the whole incident to his mother.

The two juvenile were then arrested, caution interviewed whereby Juvenile 01 admitted forcing the complainant to suck his penis and Juvenile 02 admitted to anal sex and penetration of the complainant's mouth.

Both Juveniles are first offenders.

04. As per section 207(1) (2) (a) (c) of the Crimes Decree No: 44 of 2009 the maximum sentence for an offence of Rape is to imprisonment for life.

05. Section 30 of the Juvenile Act prescribes a maximum sentence of 2 years. As per section 20 Juvenile Act the words "Conviction" and "Sentence "shall not be used in relation to Juveniles.

Tariffs for Rape

06. In the case of Chand v State [2007] AAU005. 2006S (25 June 2007), the court referred to the case of Mohammed Kasim v The State Appeal 14 of 1993 where the same court observed:
"We consider that any rape case without aggravating or mitigating feature the starting point for sentencing an adult should be a term of imprisonment of 7 years. It must be recognized by the courts that the crime of rape has become altogether too frequent... the sentences imposed by the courts for that crime must...reflect an understandable public outrage"

07. In the case of State v AT [2011] FJHC360: HAC 035.2011S (14th June 2011) Hon. Justice Temo remarked that;

"In my view, order has to be established in the Juvenile world. Young persons who are approaching adulthood (i.e. 18 years old) should not be allowed to exploit the venerable in the Juvenile world. In this case, a 17 years 10 months and 03 days old juvenile takes the advantage of a 04 years old juvenile. In my view it is the duty of the court to step in and protect the most venerable in the Juvenile world.

This is especially so, when those who are approaching adulthood(i.e. 18 years old)take advantage of the young, by raping them. To commit rape against the young, in my view, is the characteristic of a "depraved character" and a custodial sentence within the ambit of the Juvenile Act is called for. The length of the sentence will depend on the mitigating and aggravating factors".

08. The First Juvenile is 18 years old and the Second Juvenile is 17 years old. Both are studying.

09. In O'Keefe v State [2007] FJHC: 34 the Fiji Court of Appeal held that the following principle of sentencing:

"When sentencing in individual cases, the court must strike a balance between the seriousness of the offence as reflected in the maximum sentence available under the law and the seriousness of the actual acts of the person"

10. I have carefully considered these submissions in light of the provisions of the Sentencing and Penalties Decree No: 42 of 2009 especially those of the sections set out below in order to determine the appropriate sentence.

11. Section 15(3) of the Sentencing Decree provides that:

"as a general principle of sentencing, a court may not impose a more serious sentence unless it is satisfied that a lesser or alternative sentence will not meet the objectives of sentencing stated in Section 4, and sentence of imprisonment should be regarded as the sanction of last resort taking into account all matters stated in the General Sentencing Provisions of the decree".

12. The objectives of sentencing, as found in section 4(1) of the Decree, are as follows:

1. To punish offenders to an extent and a manner, which is just in all the circumstances;
   
2. To protect the community from offenders;
   
3. To deter offenders or other persons from committing offences of the same or similar nature;
   
4. To establish conditions so that rehabilitation of offenders may be promoted or facilitated;
   
5. To signify that the court and the community denounce the commission of such offences; or
   
6. Any combination of these purposes.
   

13. Section 4(2) of the Decree further provides that in sentencing offenders, a
Court must have regarded to:

(a) The maximum penalty prescribed for the offence;

(b) Current sentencing practice and the terms of any applicable and guideline Judgments;

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

(d) The defender's culpability and degree of responsibly 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;

14. Now I consider the aggravating factors:

1. That the offence was committed on a Juvenile.
2. The offence was committed by two juveniles.
3. The victim was threatened with assault.
4. That the victim was forced to commit sexual acts by the two juveniles.
5. The victim was restrained by the two Juvenile.
6. The victim was emotionally traumatized as a result of the offence.
   

15. Now I consider the mitigating circumstances:

1. Both are remorseful.
2. Both Juvenile saved the court time by pleading guilty to the charge.
3. Prevented the complainant from having to relive his ordeal encountered.
4. Both Juveniles are continuing their education.
5. Both are willing to offer traditional apology to the complainant's family.
6. Both are first offenders and fully co-operated with police.
   

16. At present 1st Juvenile is 19 years and 05 months old and 2nd Juvenile is 17 years and 08 month old. The first Juvenile already approached adulthood. (i.e. 18 years old). The second Juvenile is approaching adulthood. (i.e. 18 years old). The profound duty of the court is to ensure safety and protection of Juveniles in the community. Hence this court is duty bound to pass an appropriate sentence in order to protect Juveniles from future offenders. The victim's impact report also taken in to consideration before passing the sentence.

17. Considering all aggravated and mitigating circumstances I sentence both Juveniles as follows:

• For the 1st count I take 12 months as the starting point. I add 04 months for aggravating factors to reach the period of imprisonment at 16 months. I deduct 10 months for the mitigating factors.
  
• For the 2nd count I take 12 months imprisonment as the starting point. I add 04 months for aggravating factors to reach the period of imprisonment at 16 months. I deduct 10 months for the mitigating factors.
  

18. I order both sentence to run concurrent to each other. Now the sentence of both Juvenile is 06 months imprisonment.

19. Considering personal background and other circumstances of this case I suspend the 06 months imprisonment of both Juvenile for a period of 02 years. Suspended sentence is explained to both Juvenile.

20. Probation officer is requested to arrange proper counseling programs for both Juvenile until they complete their education.

21. 30 days to appeal.

P. Kumararatnam
JUDGE

At Suva
14th March, 2013.