State v Mohammed [2012] FJMC 277; Criminal Case 751.2012 (8 November 2012)

IN THE RESIDENT MAGISTRATE'S COURT OF FIJI
AT SUVA

Criminal Case No: 751/2009

THE STATE

V

JAMEEL MOHAMMED
(S/O Jalil Mohammed)

Prosecution : Mr. Singh (for DPP)
Accused : Ms Vulimainadave.

SENTENCE

1. Jameel Mohammed was charged with two counts of Defilement of a girl under the age of 13 years, contrary to section 155(1) of the Penal Code Act Cap 17. The alleged incident took place on 16th June 2009 at Jittu Estate in Samabula.
   
2. The accused was convicted by this Court on 18.10.2012. And thereafter both counsels moved time to file their submissions on sentencing.
   
3. It is to be noted that victim's identity has been suppressed as the proceedings held in camera.
   
4. It was established during the trial, that the victim of this case was 12 years old at the time of the incident. Jameel Mohammed was known to her prior to the incident and he had asked the victim to start a relationship in order to marry her. This was refused by the victim as she was underage but she continued to trust him as an elder brother.
   
5. On the day of the incident after meeting the victim in the bus the accused had requested her to come with him. She was in the school uniform but could not resist the accused due to the fear she had. She was taken to Jameel Mohammad's house which was situated at Jittu Estate and had sexual intercourse twice during the day before she was sent back home in the afternoon.
   
6. The incident did not come in to light until the questioning of victim's family members. She could not prevent disclosing as the matter ended up in the police station.
   
7. The maximum sentence for the offence under section 155 is life imprisonment. The maximum punishment of the offence itself shows how the legislature intended to protect younger community of the country from sexual exploitation. There is always a great tendency to abuse young children due to their vulnerability. Even after getting abused it is again easy to suppress their voices preventing it from reporting.
   
8. The guideline judgments direct sentences for defilement range f suspended sentesentence to four years imprisonment (Etonia Rokowaqa v State Criminal Appeal No. HAA 37 of 2004). Suspended sentence is reserved for "virtous friendship" offending while the higher side of the tariff is for offenders who are older and in position of trust with the victim (Elia Donumainasuva v State Criminal Appeal No. HAA032 of 2001, State v Roqica & Others Criminal Appeal No. HAA037 of 2002S).
   
9. In the present case the age difference between the victim and the accused person, and the fact that the sexual act was repeated within a short period of time justify selecting a starting point of 3 years imprisonment for each count.
   
10. It is clear that the victim trusted the accused as she agreed to accompany him to his residence. Breach of the trust undoubtedly aggravates the offence and I increase your sentence of each count by another year.
    
11. This leaves the sentence for each count at 4 years.
    
12. In mitigation you stated that you are a 29 year old first offender. Your counsel submitted number of letters of 'good stand' from your employers and neighbours.
    
13. I do not hesitate to grant a concession of 1 year to reflect your previous good behaviour.
    
14. Therefore your sentence for each count stands at 3 years imprisonment. You are further entitled for a deduction of 20 days which you already served in remand custody from the date of judgment.
    
15. This will leave your final sentence at 2 years 11 months and 10 days for on each count.
    
16. As the two offences committed during the same transaction I order the sentence of each count to run concurrently.
    
17. Jameel Mohammed you will serve 2 years of the above sentence before being eligible for parole.
    
18. 28 days to appeal.
    

Pronounced in open Court,

Yohan Liyanage
Resident Magistrate

08th November 2012