State v Prasad [2011] FJMC 135; Criminal Case 918.2009 (24 October 2011)

IN THE MAGISTRATE'S COURT OF FIJI
WESTER DIVISION AT NADI

CRIMINAL CASE NO.918/09

STATE

VS

SALESH PRASAD

Col. Naidu for prosecution
Mr. Maopa Accused
Sentence: 24.10.2011

SENTENCE

[1] You were charged with two count of ABDUCTION OF A GIRL UNDER THE AGE OF 18 YEARS WITH INTENT TO HAVE CARNAL KNOWLEDGE contrary to section 153 and one count of DEFILEMENT OF GIRL BETWEEN 13 YEARS AND 16 YEARS OF AGE contrary to section 156 (1) (a) of the Penal Code, Cap 17.

[2] You pleaded guilty to the charges when the charges were read over and explained to you and after you confirmed that you understood the charges.

[3] A summary of facts was submitted by the prosecution, which was put to you and you admitted the facts stated therein. The prosecution handed up a copy of it to court.

[4] I have reviewed the facts against the particulars of the offences charged in this case, and I am satisfied that it supports the elements of the charges in the information laid against you by the prosecution.

[5] Therefore I convict you as charged on both counts.

[6] According to section 153 of the Penal Code "any person who, with intent that any unmarried girl under the age of eighteen years shall be unlawfully and carnally known by any man, whether such carnal knowledge is intended to be with any particular man or generally, takes or causes to be taken such girl out of the possession and against the will of her father or mother, guardian or any other person having the lawful care or charge of her, is guilty of a misdemeanour:

[7] Takes-the taking need not be by force, either actual or constructive and it is immaterial whether the girl consents or not: Roshan Ali v. State [2003] HAA 8/02L 14 March 2003.

[8] Summary of facts reveals that: on 26th day of October 2009 at 1745hrs at Narewa, Nadi you abducted one SSL, a 14 years old student and took her to Sunseeker Hotel where you had sexual intercourse with her. On that day the victim came to mee you at Taj Store. You told her to wait for you at Shop and Save Supermarket Car Park. You knocked off from work at 1830hrs and went to the victim who was waiting at the said car park. Then both of you went to the Sunseekers Hotel where you booked a room and had sex. On 27 October 2009 at about 1000hrs you took the victim to Wailoaloa Beach in a seven seater where both sat together until 1500hrs. You then received a call from police about abducting a girl. Thereafter you came to Nadi Police.

[9] Both the accused and the victim were juveniles at that time. The Birth Certificate of the victim was not tendered by the prosecution. However, the Birth Certificate of the Accused has been annexed with the Pre-sentence report which confirms that he was 17 years old when he commits this offence. Medical Certificate was tendered by the prosecution as Exhibit 2 which confirm that there was no forced sexual intercourse.

[10] It appears from the facts that the victim was a wiling partner and this happened in a boyfriend-girlfriend situation.

[11] In mitigation your counsel submitted that: you are 19 now and at that time 17 years old, you were 04 years old when your father passed away, you are working at P V V Hotels (Tours) Ltd and earn $50.00-60.00 per week, you are remorseful and sought leniency and another chance. Your counsel further submitted that you are out of trouble since commission the offence and you are looking after your mother.

[12] The offence of Abduction of a girl under the age of 18 years with intent to have a carnal knowledge carries a maximum penalty of 5 years' imprisonment according to section 153 of the Penal Code. The offence of Defilement carries a maximum penalty of 10 years imprisonment.

[13] "Defilement of girls between the ages of 13 and 16 is prevalent in Fiji. If victim had consented, the appellant would have been charged with rape. A charge under section 156 (1) (a) is specifically designed consensual sexual intercourse with girls under the age of consent. The offence is clearly designed to protect young girls, who have entered puberty and who are experiencing social and hormonal changes, from sexual exploitation. Reported cases in Fiji and abroad show that the sentences passed range from suspended sentences ( usually where defendant and victim are both same or similar age, and are in a relationship) to ¾ years imprisonment where defendant is in a position of trust in relation to victim, and much older than her. Thus, where defendant is boyfriend; victim is now pregnant and has dropped out of school; the appellant came with defendant (2) and the result is that victim does not know who the father of her child is, a sentence of 2 years is not excessive": per Shameem J in Elia Donumainaisava V State [2001] HAA 32/01S 18 May 2001.

[13] You pleaded guilty to the charges thereby save time and resources of the court. This not a classic abduction case where force was normally used to a girl from her home. Both the accused and the victim were juveniles at that time. The outline of fact does not show that the victim is pregnant and has dropped out of school.

[14] Considering all, in this case I fix a sharp sentence of 18 months' imprisonment on each count. These sentences to be served concurrently with each other hence in total you are to serve 18 months imprisonment.

[15] I am mindful of the fact that a sentence below 02 years could be suspended in terms of section 26-(2) (b) of the Sentencing and Penalties Decree 2009.

[16] You are 19 years old. You have a family to look after. You are remorseful. You are working at P V V Hotels (Tours) Ltd. Pre-Sentence Report states that you committed this offence when you were 17 years old. This Report further states that you have learned a great lesson from the mistake you had committed and you are no risk to the community. If I impose a custodial sentence, that would crush on your future. You are a young first offender.

[17] In the circumstances, I have to give you a chance to reform yourself and be a good citizen.

[18] I therefore suspend the sentence for a period of 04 years from today.

[19] You must not re-offend during the operational period of the suspended sentence.

[20] If you re-offend during the operational period of the suspended sentence of imprisonment, you are liable to be prosecuted under section 28-(1) of the Sentencing and Penalties Decree 2009.

[21] Twenty eight (28) days to appeal.

ORDER

[22] I make the following order:

1. Salesh Prasad, you are hereby sentenced to 18 months imprisonment suspended for 04 years from today.
   

M H MOHAMED AJMEER
Resident Magistrate

Dated at Nadi this 24th day of October 2011.