Regina v Richardson [1963] FJLawRp 44; [1963] 9 FLR 129 (23 August 1963)

(1963) 9 FLR 129

SUPREME COURT OF FIJI

CRIMINAL JURISDICTION

REGINA

v.

RICHARDSON

[SUPREME COURT, 1963 (Hammett Ag. C.J.), 16th, 23rd August]

Criminal law-indecent assault on male-consent a defence-Penal Code (Cap. 8) ss. 145, 165, 166, 167.

Criminal law-conviction-jurisdiction to convict of minor offence of cognate character-Criminal Procedure Code (Cap. 9) ss. 331 (1) (a), 325 (1).

While consent is not a defence to charges of "Unnatural offences" or "Indecent Practices between Males" contrary to sections 165 and 167 respectively of the Penal Code, it is a defence to a charge of indecent assault on a male contrary to section 166. The accused pleaded guilty to three charges of indecent assault under section 166 in circumstances indicating that the other parties to the assaults consented.

Held.-The three convictions for indecent assault could not stand and convictions of offences under section 167 of the Penal Code, being lesser offences of a cognate character, should be substituted.

Order on revision of magisterial conviction.

McFarlane for the accused.

Palmer for the Crown.

HAMMETT Ag. C.J. [23rd August, 1963]-

The accused has charged before the Magistrate's Court on three counts of indecent assault contrary to section 166 of the Penal Code. The particulars of offence were as follows:

First Count-

Peter David Thomas Richardson, on a date unknown between the 1st day of February, 1963, and 28th day of February, 1963, at Lautoka, in the Western District, indecently assaulted a male person, namely Sefanaia Baleinavetau.

Second Count-

Peter David Thomas Richardson, on a date unknown between the 1st day of September, 1962, and 30th day of September, 1962, at Lautoka, in the Western District, indecently assaulted a male person, namely Apisai Tunuma.

Third Count-

Peter David Thomas Richardson, on a date unknown between the 1st day of May, 1963, and 31st day of May, 1963, at Lautoka, in the Western District, indecently assaulted a male person, namely Jese Qauqau alias Saukuru.

He pleaded guilty to each count and, having admitted the facts outlined by the Prosecutor, was convicted on each count. He was sentenced on each count to concurrent terms of imprisonment, amounting to an effective total of 15 months. The Attorney-General has very properly drawn my attention to this case.

Upon examining the record it became clear to me that in this case no consideration was given in the Court below to the question of whether consent was a defence to a charge of indecent assault. The facts show that the persons alleged to have been assaulted, who were aged 17, 22 and 23 years, respectively, consented to the acts of the accused. I therefore directed that the cases be brought before the Supreme Court in the exercise of its Revisional Jurisdiction for these decisions to be reviewed.

At the hearing before me on revision, both the prosecution and the accused were represented by counsel and I have had the benefit of the arguments of both counsel, an advantage which was not enjoyed by the learned trial Magistrate before whom the accused appeared when he was not legally represented.

The three principal homosexual offences in the Penal Code are as follows:-

Section 165. "Unnatural offences" commonly known as Buggery and Sodomy:

"Any person who-

(a) has carnal knowledge of any person against the order of nature; or

(b) has carnal knowledge of an animal; or

(c) permits a male person to have carnal knowledge of him or her against the order of nature,

is guilty of a felony, and is liable to imprisonment for fourteen years, with or without corporal punishment."

Section 166. "Indecent assaults upon males", of which the material part reads:

"Any person ... who is guilty ... of any indecent assault upon any male person, is guilty of a felony, and is liable to imprisonment for seven years, with or without corporal punishment" and

Section 167. "Indecent practices between males", of which the material part reads:

"Any male person who, whether in public or private, commits any act of gross indecency with another male person, ..... is guilty of a felony, and is liable to imprisonment for five years, with or without corporal punishment."

Consent is not a defence to a charge of "Unnatural offences" under section 165 or of "Indecent practices between males" under section 167.

The offence of indecent assault under section 166 involves an element of an actual physical affront of a homosexual and indecent nature upon the person of another male against his will. Lack of consent is an essential ingredient in the offence of indecent assault. Consent is, therefore, a good defence to a charge of indecent assault.

In this connection I should perhaps draw attention to the provisions of section 145 which deals with the offence of indecent assault upon females, of which the first two subsections read:

"145.-(1) Any person who unlawfully and indecently assaults any woman or girl is guilty of a felony, and is liable to imprisonment for five years, with or without corporal punishment.

(2) It is no defence to a charge for an indecent assault on a girl under the age of sixteen years to prove that she consented to the act of indecency."

The law in Fiji expressly provides hereby that the consent of a girl under the age of sixteen years to an act of indecency is not a defence to a charge of indecent assault upon her. It makes no such provision, however, in the case of indecent assaults upon boys under the age of 16, whatever may be the law elsewhere.

In this case the persons concerned in each of these three charges were over the age of sixteen years and did, I am satisfied, consent to the acts of indecency alleged and admitted. It is clear, therefore, in these circumstances, that these three convictions of indecent assault cannot stand.

Mr. McFarlane, who appeared for the accused, concedes that the acts of the accused, which were complained of in each count, did amount to "indecent practices" and offences contrary to section 167 of the Penal Code. The maximum punishment for the offence of "Indecent Practices" under section 167 is five years as opposed to seven years for indecent assault under section 166. The offence of indecent practices under section 167 is, therefore, a lesser offence of a cognate character than the offence of indecent assault under section 166.

Section 164 (2) of the Criminal Procedure Code reads:

"When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it."

The Court below could, therefore, in these circumstances, on the facts before it, have convicted the accused of the offence of "Indecent Practices" contrary to section 167 of the Penal Code. This Court is empowered by sections 331(1) (a) and 325 (1) of the Criminal Procedure Code to exercise any power the Magistrate's Court could have exercised.

Mr. McFarlane informs me that had he represented the accused in the Court below he would have advised his client to plead guilty to this lesser offence. Neither he nor the Crown nor the accused ask for a retrial, and all ask that this Court substitute convictions of the lesser offences of indecent practices between males under section 167 for the convictions of indecent assault under section 166. This is the course I shall adopt. I do, therefore, set aside the convictions and sentences passed in the Court below and in lieu thereof I convict the accused on each of counts 1, 2 and 3 of offences contrary to section 167 of the Penal Code.

I have heard both counsel at some length on the question of sentence. I have taken all they have said into consideration. I have also taken account of the desirability for some measure of consistency in the sentences which are passed by the several Courts in the country for similar offences. In this connection I have observed that sentences of from 9 to 12 months' imprisonment have been passed recently in respect of the more serious offence of "Unnatural Practices" contrary to section 165 of the Penal Code. In the present state of the law such sentences do not appear to me to be inappropriate in the case of a first offender, always provided that the differing circumstances are considered individually on their merits in each case.

It is part of the function of the law to safeguard those who need protection by reason of their youth. Men who commit offences against such persons must be treated as criminal offenders. Whatever may be the causes of their disposition or the proper treatment for it, the responsibility for their overt acts remains theirs except where there are circumstances which the law accepts as exempting them from accountability. Offences of this kind are particularly reprehensible when the men who commit them are in positions of special responsibility. When an accused is involved in an offence with a boy or youth, it appears that the invitation to the commission of the act does sometimes come from him rather than from the accused. Even when this is so, however, that fact does not serve to exculpate the accused.

Having given careful and anxious consideration to all the circumstances of this case, I am of the opinion that an appropriate sentence would be one of six months' imprisonment on each count to be served concurrently With effect from the date of the original convictions and I do so order.

Convictions quashed.

Convictions for minor offence substituted.

Solicitors for the accused: Grahame and Co.

Solicitor-General for the Crown.