State v L.T [2014] FJHC 568; HAC03.2014 (1 August 2014)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 03/2014

BETWEEN:

STATE

AND:

1. L.T. (The First Juvenile)
2. S.T. (The Second Juvenile)
3. O.B. (The Third Juvenile)

COUNSELS: Ms. P. Low for the State
Mr. P. Lomaloma for the Accused

Date of Hearing: 29/07/2014
Date of Sentencing: 01/08/2014

SENTENCE

[Names of the accused persons and the victim are suppressed. The 1st, 2nd and 3rd accused persons will be referred to as L.T, S.T and O.B. respectively and the victim will be referred to as R.T.]

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

FIRST COUNT

Statement of Offence

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

Particulars of Offence

L.T, S.T, O.B with two others on the 17th day of August, 2012 at Bua College, Bua in the Northern Division, penetrated the vagina of R.T with his penis without R.T's consent.

[02] When the plea was taken up on 24/04/2014 the Juveniles pleaded not guilty to the charge. But on 28/07/2014 the Juveniles through their counsel informed this court that they want to change their plea. Information was read out once again and all Juveniles pleaded guilty to the charge. Accepting the Plea to be unequivocal this court found them guilty to the charge and convicted them under Section 207(1) and (2) and (a) of Crimes Decree No: 44 of 2009.

[03] State Counsel submitted the following summary of facts of which the Juveniles admitted.

[04] On 17th August 2012 (Friday) at about 3pm whilst in front of Form 301 classroom of her school Bua Central College, victim met Accused 1. Accused 1 then invited the victim to accompany him to the School Farm to look for a student namely Livia. Accused 1 forcefully pulled victim's hand and the duo wet down the school farm. Upon reaching the farm accused 1 told the victim that they don't go and look for Livia as he only wish to talk to the victim and wanted the victim to be his girlfriend but the victim did not agree. Accused 1 then pushed victim and she fell and when victim looked up and tried to stand up, Accused 1 was on top of her and she could see Accused 2 and Accused 3 surrounding her. Accused 2 then closed the victim's mouth with his hand and sat on her breast whilst Accused 1 took off her school skirt and panty and without her consent inserted his erected penis into her vagina and had sexual intercourse with the victim. Victim felt pain and could not shout as Accused 2's hand was blocking her mouth and Accused 3 was holding her legs. Victim then managed to push Accused 2's hand away from her mouth and told Accused 1 to stop but Accused 1 did not respond to her and later said that those students present at the scene are his nephews. Then Accused 3 took his turn after Accused 1. Accused 3 took off his sarong (his uniform also known as Sulu) and underwear and inserted his erected penis into the victim's vagina, without the victim's consent and pushed his penis in and out of the victim's vagina several times before pulling out. Victim felt pain but could not do anything. Accused 2 then took his turn by first taking off his underwear ad without the victim's consent inserted his penis in and out of the victim's vagina before pulling out his penis. Victim felt pain too when Accused 4 was inserting his penis in and out of her vagina.

After the incidents said above, all of the 3 accused persons and other co-offenders went away leaving the victim at the scene (school farm). Victim then later stood up, saw blood stains on her skirt, felt weak, dizzy and felt stickiness on her thighs. Victim then wore her clothes, returned to the school premises and relayed the story of what happened to her at the school farm to one Olivia a student and then went home. Victim did not tell anyone else what happened to her on the day at the school farm as she was scared.

The matter was reported later by the school to the police.

On 10/10/12, the victim was medically examined at Nabouwalu Hospital and a medical report was obtained on her behalf which stated no other finding apart from perforated hymen (a copy of the medical report is attached herewith as Prosecution exhibit).

On 11/10/12, all of the three (3) accused persons, accused 1 L.T, accused 2 S.T and accused 3 O.B were individually interviewed under caution at the Nabouwalu Police Station, all interviews were conducted in the Fijian language and all of them denied the allegation of rape leveled against them by the victim.

On 12/10/12, all of the three (3) accused persons were formally charged individually at the Nabouwalu Police station and none of them gave a statement during their charge, to the police.

All of the three (3) Accused persons were Juvenile offenders at the time of offending and all three of them are first offenders and have no previous convictions as per confirmation from the Criminal Records Office (Confirmation of all three (3) accused persons attached).

[05] The First Juvenile was born on 19/03/1995 and was 17 years of age and a Form 6 student at the time of the offending.

[06] The Second Juvenile was born on 11/10/1995 and was 16 years of age and a Form 5 student at the time of the offending.

[07] The Third Juvenile was born on 30/08/1996 and was 16 years of age and a Form 5 student at the time of the offending.

[08] As per Section 207(1) (2) and (a) of the Crimes Decree No: 44 of 2009, the maximum sentence for an offence of Rape is to imprisonment for life.

[09] 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

[10] 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"

[11] 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".

[12] Now the First Juvenile is 19 years of age at present and has completed Form 7 last year and wishes to pursue his studies at the Fiji National University defending on the results.

[13] The Second Juvenile is 18 years of age and still schooling and doing vocational studies.

[14] The Third Juvenile is 18 years of age and still schooling and doing vocational studies.

[15] 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"

[16] I have carefully considered these submissions in light of the provisions of the Sentencing and Penalties Decree No: 42 of 2009 especially sections 4(1), (2) and 15 (3) of the Act.

[17] Now I consider the aggravating factors:

1. That the offence was committed on a Juvenile. The victim was 16 years old at the time of the incident.
   
2. The offence was committed by Juveniles.
   
3. The victim is a fellow student of the school.
   
4. That the Juveniles took advantage of the trust that the victim placed on them as fellow students.
   
5. The victim was emotionally and psychologically traumatized as a result of the offence.
   

[18] Now I consider the mitigating circumstances:

1. The Juveniles are remorseful and they wish to apologize to the victim for what they have done.
   
2. They saved the court time by pleading guilty to the charge.
   
3. Prevented the complainant from having to relive her ordeal encountered.
   
4. All Juveniles are continuing their education.
   
5. All Juveniles are first offenders and fully co-operated with police.
   
6. They regret what they have done and assure the court that they will not re-offend.
   

[19] At present all Juveniles are approached their adulthood. 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.

[20] Considering all aggravating and mitigating circumstances I take 12 months imprisonment as the starting point on each Juvenile. I add 04 months for aggravating factors to reach the period of imprisonment at 16 months. I deduct 04 months for the mitigating factors.

[21] Now the sentence of each Juvenile is 12 months imprisonment.

[22] Considering personal background and other circumstances of this case I suspend the 12 months imprisonment of each Juvenile for a period of 05 years. Suspended sentence is explained to the Juveniles.

[23] Probation officer is requested to arrange proper counseling programs for the Juveniles until they complete their education. Breach of any conditions lay down by the probation officer to be reported to this Court for an appropriate order.

[24] 30 days to appeal.

P Kumararatnam
JUDGE

At Labasa
01/08/ 2014