State v Koroitalemaiyale [2012] FJMC 337; Criminal Case 1137.2012 (2 November 2012)

IN THE MAGISTRATES COURT AT NASINU

(Extended Jurisdiction of the High Court of Suva)
Criminal Case Number: HAC 318/2012
Nasinu MC Criminal Case No. 1137/2012

STATE

-v-

MALELI KOROITALEMAIYALE

The Accused appeared in person
Ms. Jayneetha Prasad, State Counsel for the DPP.

Sentence

1] The accused, MALELI KOROITALEMAIYALE, is a juvenile is charged for following offence namely;

CHARGE:

Statement of Offence [a]

RAPE: Contrary to Section 207 [2] (b) of the Crimes Decree No. 44 of 2009.

Particulars of Offence [b]

SIMIONE LENAITASI, on the 25th day of August, 2012, at Nasagalau, Lakeba, Lau in the Eastern Division had unlawful carnal knowledge of Fane Veiqaravi without her consent.

2] The case was remitted under extended jurisdiction to this court. The juvenile pleaded guilty to the charge. On his own plea that juvenile had been found guilty to the above charge.

3] The SUMMARY OF FACTS which was admitted by the juvenile is reproduced for clarity as follows; On Saturday morning 25/8/12 at Nasaqalau Village at about 0430 hours Simione Lenaitasi age 17 (Accused) rape Fane Veiqaravi (victim) age 20 by penetrated his two finger into the victim's vagina without her consent. On the above time and date the victim was with her boyfriend namely Ratu in one vacant house in the said village, when Waqa PW1 the victim's uncle enter the house and chased Ratu away. PW1 and the victim looking for Ratu when the accused accompany them. They did not find Ratu than PW1 took the victim to her house to sleep. PW1 drop the victim home and went to his house. The accused enter from the kitchen door to the victim's room and call her and told her that her boyfriend Ratu is waiting for her at the house of Meleki. When they reached the house the victim went inside and call her boy friends name, but there was no reply. The accused enter the house and start force the victim to have sex. The accused try to kiss the victim's mouth and start to push her around. The victim manage to run outside and call for help, the accused run after her and pull her to the ground. The accused lying on top and force his right middle and fore finger inside the victim's trousers, than penetrated into the victim vagina without her consent. By all this time the victim told the accused to stop and leave her alone and she keep shouting calling for help. It took about 10 – 15 minutes when Mitieli Lawana PW3 arrived and chased the accused away. The matter was reported at the Lakeba Police Station, and the victim was taken to the Lakeba Hospital for medical examination.

4] The offence described in section 207 of the Crimes Decree 2009 and maximum sentence is life imprisonment..

"207. — (1) Any person who rapes another person commits an indictable offence.

Penalty — Imprisonment for life.

(2) A person rapes another person if —

(a) the person has carnal knowledge with or of the other person without the other person's consent; or

(b) the person penetrates the vulva, vagina or anus of the other person to any extent with a thing or a part of the person's body that is not a penis without the other person's consent; or

(c) the person penetrates the mouth of the other person to any extent with the person's penis without the other person's consent.

(3) for this section, a child under the age of 13 years is incapable of giving consent".

5] The State has filed useful sentencing submission in this regard. However Section 4 of the Sentencing and Penalty Decree 2009 gives the Sentencing Guidelines, those are;

4. (1) The only purposes for which sentencing may be imposed by a Court are-

(a) To punish offenders to an extent and in a manner which is just in all the circumstances;

(b) To protect the community from offenders;

(c) To deter offenders or other persons from committing offences of the same or similar nature;

(d) To establish conditions so that rehabilitation of offenders may be promoted or facilitated;

(e) To signify that the Court and the community denounce the commission of such offences; or

(f) Any combination of these purposes.

(2) In sentencing offenders a Court must have regard to-

(a) The maximum penalty prescribed for the offence;

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

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

(d) The offender's culpability and degree of responsibility 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 of indicated an intention to do so;

(g) The conduct of the offender during the trial as an indication of remorse or the lack of remorse;

(h) Any action taken by the offender to make restitution for the injury, loss or damage arising from the offence, including his or her willingness to comply with any order for restitution that a Court may consider under this Decree;

(i) The offender's previous character;

(j) The presence of any aggravating or mitigating factor concerning the offender or any other circumstance relevant to the commission of the offence; and

(k) Any matter stated in this Decree as being grounds for apply to particular sentencing option.

6] The maximum sentence for the offence of rape in life imprisonment. The Juveniles Act [Cap 56] restricts the punishment that a Court can impose on a young person to 2 years. Section 30 of the Juveniles Act states:

"30. (1) No child shall be ordered to be imprisoned for any offence.

(2) No young person shall be ordered to be imprisoned for an offence, or to be committed to prison in default of payment of a fine, damages or costs, unless the Court certifies that he is of so unruly a character that he cannot be detained in an approved institution or that he is of so depraved a character that he is not a fit person to be so detained.

(3) A young person shall not be ordered to be imprisoned for more than two years for any offence."

7] In line with the above guidelines the State has submitted following cases as Tariffs. In State v T.V.K [2011] Crim. Case No. HAC 14 of 2011, 12 October 2011, the High Court punished two juveniles to probation until the age of 18 years for the offence of rape and sexual assault. In State v Y.M [2011] Crim. Case No. HAC 2 of 2011, 10 February 2011, the High Court punished a juvenile with a term of 6 months imprisonment suspended for 2 years for the offence of rape. A probation order was also made for 2 years. In State v JM [2011] Crim. Case No. HAC 171 of 2010, 18 November 2011, the High Court punished a juvenile with 6 months imprisonment suspended for 2 years for the offence of rape. A probation order was made for 2 years. In State v P.M [2012] Crim. Case No. 303 of 2012, 11 May 2012 the High Court in making a finding that a juvenile was of a depraved character punished him with 12 months imprisonment for the offence of rape.

8] The offence of rape is a serious offence. The Courts have considered the offence of rape to be abhorrent and in sentencing have often looked at deterrence as a relevant sentencing principle. In State v Chand [2011] Crim. Case No. HAC 50 of 2011, 2 June 2011, the High Court stated:

"The offence of rape is very serious in that it is triable only by the High Court, which attracts the punishment of life imprisonment under Section 207 (1) of the Decree. In addition to the severity that could be gauged with reference to the sentence, sexual offences by their way constitution are serious in nature because law recognizes no exculpatory or mitigatory defences. Courts, time and again, have emphasized the requirement of deterrence in imposing sentences on convicts for rape of children".

9] AGGRAVATING FACTORS are Breach of trust, in that, the victim was lured by the accused by false promises. That victim and the accused were well known to each other.

10] MITIGATING FACTORS are the accused is 17 years old juvenile and Form 4 at Ratu Finau Secondary School. He apologized to the court. He asked the second chance as he is a first offender. He asked non custodial sentence this will allow him to complete the studies. He promised not to reoffend. The accused said that the victim and the accused were at drinking party and they were touching each other and he is drunk at the moment. His parents are old and he is the only hope for them.

11] The action of the accused is cannot be condoned. The accused came to the house and took victim away saying that her boy friend is waiting for her and committed this offence. Considering the aggravating facts and mitigation and early plea I impose 2 years imprisonment. I now consider the issue of suspending the sentence.

12] The New Zealand Court of Appeal in R v Peterson (1994) 2 NZLR 533 outlining the principles of suspended sentence said:

"...the courts first duty was to consider what would be the appropriate immediate custodial sentence, pass that and then consider whether there were grounds for suspending it. Factors should be considered were clearly mentioned in that case. The factors when it comes to the offender as the age, previous good record, long period of free of criminal activity, and as to the circumstances of the particular case diminished culpability arising through lack of pre meditation, the presence of provocation and cooperation with the authorities all those factors are applicable to the present case."

13] In the case of Mosese Nariva v the State [2006] FJHC; HAA 0148J.2005S (9 February 2006) Madam Justice Shameem stated:

"....the courts must always make every effort to keep young first offenders out of prison. Prisons do not always rehabilitate the young offender. Non-custodial measures should be carefully explored first to assess whether the offender would acquire accountability and a sense of responsibility from such measures in preference to imprisonment."

14] In this case the accused is a young offender of 17 years old, juvenile. He is a first offender who pleaded guilty without wasting court resources and being remorseful. There is no penile penetration. In the circumstances I find that this is a fit case where the above sentence should be suspended.

15] Therefore I suspend the 2 year imprisonment sentence for 5 years. You should have clear records for next 5 years. If you were convicted for any offence, you will be charged and this suspended sentence will be activated.

16] Nature of suspended sentence is explained in open court and copy of this order given to the accused and the State for appeal purposes.

Sumudu Premachandra

Resident Magistrate –Nasinu

At Nasinu, Fiji

02nd November 2012.