Regina v Prasad [1977] FJSC 158; Criminal Appeal 47 of 1977 (24 June 1977)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA
APPELLATE JURISDICTION

Criminal Appeal No. 47 of 1977

BETWEEN

REGINA
Appellant

AND

SHIRI PRASAD s/o Brij Lal
Respondent

Mr. P. Williams, Counsel for the Appellant
Mr. J.R. Reddy & S.D. Sahu Khan, Counsel for the Respondent

JUDGMENT

This is an appeal by the D.P.P. against a fine of $100 or 4 months imprisonment imposed on an accused for defilement of a girl between 13 and 16 years.

The prosecution submit that the sentence is manifestly lenient.

The facts outlined following the accused's plea of guilty show that the offence was committed on 20th January 1976 at which time the accused was 24 years of age and the girl was 13 years and 11 months. It appears that the accused had surreptitiously courted the girl for 18 months prior to the date of offence. The couple had been meeting secretly and exchanging letters without the knowledge of the girl's parents.

On 20/1/76 at 9.00 p.m. the girl met the accused near his house and offered to stay with him. At the time he was parted from his wife and he took the complainant into his house where she spent the night and he had intercourse with her. He then took her into the country to a Fijian house and lived with her for 5 days until the police located them.

The medical report showed an old tear of the hymen and the magistrate took the view that on some earlier occasion the girl may have had relations with someone other than the accused. The girl told accused she was 15 years of age.

Sentences in such cases are difficult to assess because of the fairly wide range of factors to be considered and sometimes one may obtain guidance from the observations of superior courts.

Thomas's Principles of Sentencing deals with unlawful sexual intercourse with girls at pp. 113-119, but pages 116 to 119 refer to girls under 13 years and the complainant in this case was 13 years and 11 months.

Where the offender is an adolescent the Courts usually impose a modest fine - Thomas at P. 133.

Where the offender is an older man a more serious view is taken and imprisonment is considered necessary including substantial sentences - Thomas p. 113-114. It is under this head that one should perhaps look to the authorities and at p. 115 Thomas points out that where the offender is a man in his twenties the emphasis in dealing with offenders shifts to deterrence.

In R v. Sopherson 1963 Cr. L.R. 66 the accused, married and aged 27 committed a number of acts of intercourse with a 15 year old girl who had relations with other men. A two year sentence was reduced by Lord Parker C.J. to 6 months. The complainant's promiscuity did not save the accused from a prison sentence.

In R v Renphrey 1964 Cr. L.R. 671, a 23 year old male had intercourse with a 15 year old girl who became pregnant. He had a poor record including indecent assault, incest and carnal knowledge. A sentence of 2 years was upheld.

A sentence of 2 years was upheld in R v Lock 1967 Cr. App R. 374 where a married man of 43 years had intercourse with a 13 year old girl with her mother's approval. The Court regarded it as a shocking affair.

A married man in his twenties who obviously has some experience in sexual relationships is probably able to win the affection and confidence of a young girl more easily than an unmarried man and she needs to be protected from that section of the male community.

After hearing the facts the magistrate said of the old hymen tear that he construed this in the accused's favour and in passing sentence said that the girl may have had sexual relations before this. In mitigation it was urged that the girl had propositioned the accused. These were factors which the magistrate weighed in the accused's favour when considering sentence. At p. 116 the learned author D.A. Thomas (supra) observed,

"The element of 'contributory negligence' which has substantial effect in cases of rape, appears to have very little significance in the content of unlawful sexual intercourse. The dominating factor is clearly the age discrepancy, and the fact that the girl is a willing partner, or even the initiator, does not have much effect on the sentence."

These observations indicate that the learned magistrate was erroneously counting in the accused's favour such possibilities as the girl's former sexual experience and her ready co-operation in assessing sentence.

The learned magistrate also remarked that the attitude of society is changing towards such offences and becoming more tolerant. The Court of Appeal made a similar comment in R v Rathbone, 1976, Cr. L.R. at 521 saying,

"Times and attitude, and the age of puberty, had changed and there had been agitation to lower the age of consent, and committees were considering the problem. In the meantime the Courts must apply the law."

They were considering a case of a man of 26 years who had an illicit association with a girl of 14 years. The man met another girl of 15 years in a public house and took her home. She was not a virgin. He attempted to have intercourse with her. He pleaded guilty in relation to the offences with both girls and received 9 months imprisonment. They said that such girls clearly needed protection and took account of the fact that legislation has not been moved by the attempts of certain groups to change public opinion and the law in relation to punishment for such offences. It is for the Courts to administer the law as it is and not according to what some people think it should be. I am not suggesting that the attitude of the Courts does not reflect public opinion; but what some people think is not necessarily what the public thinks.

The respondent relied upon a Labasa Case ULIANO METUI v. R; Cr. App. 16/76 in which an accused had received 2 years & 6 strokes for carnal knowledge of a girl of 15 years. The learned Chief Justice set aside the sentence and substituted 2 years probation. That case was very different indeed from the instant appeal; in that case the age disparity was only 5 years but is 10 years in this appeal. There is no suggestion that Uliano who was 20 years of age was married; but this accused is 24 years and is married and has children. One can scarcely regard it in accused's favour that over a period of 18 months he had, without her parent's knowledge, cultivated her acquaintance. The accused's intentions could scarcely have been purely platonic as the end result reveals. Again this was not an isolated act of intercourse; the accused lived with the girl for almost a week and the association no doubt would have continued had the police not searched for the girl and ended it.

In another Labasa case, Cr. App. 28/76, Shiu Ram v. R. received a sentence of 9 months which was upheld by Kermode J. The accused, a married man of 23 years with 2 children had carnal knowledge of a girl aged 14 years and 8 months. In that case however the accused was a school teacher and one may say that he owed the girl an extra duty of care which he abused; on the other hand the complainant in the instant appeal was under 14 years.

The magistrate accepted defence counsel's contention that it was usually in cases where there was a breach of some custodial duty that imprisonment is likely to be imposed and this would be of short duration. It is not a proposition which I endorse.

In my view the principles are set out in Thomas's Principles of Sentencing. No hard and fast rules can be formulated. It is clear that the Courts have regard for the maturity of the offender and the age of the complainant. A married man of 24 years with children may well be regarded as being as mature, at least sexually, as a much older man. Again a single act of intercourse will not be regarded as severely as taking a girl under 14 years to cohabit with him, as in the instant case. Where such conduct on the part of a married man has been preceded by the deliberate and secret courtship of the girl from the time she was 12 years old a more serious view should be taken.

The Ordinance as indicated in R v Rathbone above was passed to protect young girls from becoming the victims of their own adolescent sexual impulses. When the legislature feels that adolescent young girls no longer need to be reasonably protected from married men no doubt it will make the necessary amendments. Meanwhile the Courts must give effect to the legislature's existing intention of protecting young girls. In so doing they will endeavour to distinguish the cases of young adolescent males forming friendships with young girls who have reached puberty from unpleasant young males who take advantage of the sexual impulses of younger females.

This was not in my view the kind of case in which a fine was adequate. The accuseds in the past who have received such fines have generally been adolescent unmarried males. The sentence was a fine of $100 or 4 months in default. I set aside that portion of the sentence which imposes an alternative of $100 fine and order that the sentence shall be one of 4 months imprisonment.

The fine, if it has been paid, shall be refunded.

(SGD) J. T. WILLIAMS
JUDGE

LAUTOKA,
24th June 1977.

Messrs. Sahu Khan & Sahu Khan for the Respondent
Director of Public Prosecutions for the Appellant.

Date of Hearing: 10th June, 1977.