State v Prasad [2014] FJMC 93; Criminal Case 711.2011 (28 May 2014)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA

Criminal Case No: - 711/2011

STATE
v.

NIRAJ KIRAN PRASAD

Mr. Shivendra Nath for the State
Ms. Priya Lal ( Legal Aid) for the Accused

Date of Judgment : 12th May 2014
Date of Sentence : 28th May 2014

SENTENCE

1. NIRAJ KIRAN PRASAD , you were convicted after a trial for one count of Defilement contrary to section 214(1) of the Crimes Decree No 44 of 2009.
   
2. During the trial it was revealed that on 21st August 2010 you had unlawful carnal knowledge with Ms. LN ( name suppressed) who was 13 years old at that time .
   
3. Both parties have filed submissions which I have also considered for this sentence.
   
4. Maximum penalty for this offence under the Crimes Decree is life imprisonment.
   
5. In John Peter Vunilagi v State (Criminal Appeal Case no. 075 of 2004 and HAA076 of 2004) appellant was sentenced in the Magistrates Court for 6 years imprisonment for defilement of a girl under 13 years of age and sitting in appeal Shameem J had made following comments whilst upholding a sentence of 6 years imprisonment.
   

"In respect of defilement of girls under the age of 13, the statutory maximum is life imprisonment. There can be only exceptional circumstances which could justify a term of imprisonment less than 3 years".

6. In the above-mentioned case Shameem J has referred to Attorney General Reference (No. 1 of 1989) [90 Cr. App. R. 149] which laid down the guidelines for sentencing the offenders who had sexual intercourse with girls under 13 years. Like in Fiji, in England maximum sentence for such offence is life imprisonment and considering the guidelines Shameem J held;
   

"The court said that a wide range of sentences could be expected, but where the victim was not far short of her thirteenth birthday and there were no particularly adverse or favaourable features, at term of 6 years would be appropriate. The younger the girl when the sexual approach was first made, the more it would be that her will was overborne, and the more serious the crime".

7. Aggravating factors in this case are that the age difference between the parties taking advantage of the complainant's vulnerability and lack of remorse by denying offence even in the mitigation stage.
8. Mitigating factors are you are a young offender, married with a 06 month old child , sole bread winner and looking after your elderly mother .
9. Considering the facts in this case I select 06 years as my starting point and add 03 years for aggravating factors to reach 09years. For mitigating factors I deduct 03 years and for past good behavior I deduct 01 year to reach 05 years imprisonment.

10. Considering your age as well as your past good behavior this Court would not impose non - parole period for you in this case.
    
11. NIRAJ KIRAN PRASAD, you are sentenced to 05 years imprisonment for the offence of Defilement contrary to section 214(1) of the Crimes Decree.
    
12. 28 days to appeal
    

H. S. P. Somaratne
Resident Magistrate