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Vale v The State [1995] FJHC 117; Haa0022j.95b (17 July 1995)

IN THE HIGH COURT OF FIJI
At Labasa
Appellate Jurisdiction

CRIMINAL APPEAL NO. 0022 OF 1995

Between:

RUSIATE VALE
Appellant

- and -

THE STATE
Respondent

Appellant in Person
Ms. L. Laveti for Respondent

JUDGMENT

On the 13th of March 1995 the appellant was convicted by the Labasa Magistrate Court on his plea of 'guilty' to an offence of Defilement and sentenced to imprisonment for 3 years "consecutive to the sentence he is serving now". At the time the appellant had barely begun serving a sentence of 3 years imprisonment imposed in the Savusavu Magistrate Court for an earlier offence of Defilement. He was therefore required to serve a total of 6 years imprisonment for the two offences.

The appellant now appeals against the harshness of the present sentence and urges his relative youth and consequent hardship on his family as a result of his incarceration.

Although there was no appeal against the original sentence of 3 years imprisonment imposed by the Savusavu Magistrate Court, given its close proximity in time to the present sentence; the identity in the offence charged and the absence of any legal representation for the appellant, I have considered it appropriate under the Court's revisional powers to examine the propriety of both sentences viewed as a 'totality'.

In this latter regard there is not the slightest doubt in my mind that custodial sentences were wholly appropriate to both punish and deter the appellant who was a second-time offender. Furthermore the fact that the offences occurred at different times and involved different victims is properly reflected by the learned trial magistrate's consecutive order.

The appellant who appeared in person at the hearing of his appeal is of a fairly slight frame and could easily pass for a person younger than his 21 years of age. For all intents and purposes he is a young first offender and has been a villager all his life. He was educated up to Class 8 and he seeks the Court's forgiveness and mercy.

Even accepting that the law of Defilement exists for the protection from exploitation of young girls such as the complainant nevertheless, Court's have long recognised that the degree of culpability in such an offence differs markedly with the offender and the circumstances of the offence.

At one end of the scale is the 'virtuous friendship' between teenagers ending up with sexual intercourse where the Court's have said that a punitive sentence is inappropriate, and at the other end, is 'a grown man in a supervisory capacity who abuses his position of trust' for his own sexual gratification where a lengthy custodial sentence ought to be imposed.

The appellant's case clearly falls somewhere in between those two extremes and, if I may say so, is somewhat closer to the 'virtuous friendship' type of case. Lawton L.J. in Derek Roy Taylor v. R. (1977) 64 Cr. App. R. 182 in seeking to provide some sentencing guidelines in this 'middle range' said at p.185:

"In between there come many degrees of guilt. A common type of offender is the youth who picks up a girl of loose morals at a dance, takes her to the local park, and, behind the bushes has sexual intercourse with her. That is the kind of offence normally dealt with by a fine. When an older man in his twenties, or older, goes off to dances and picks up a young girl, he can expect to get a much stiffer fine, and if the girl is under 15 he can expect to go to prison for a short time. A young man who deliberately sets out to seduce a girl under the age of 16 can expect to go to detention ... such is the wide variety of penalties which can be applied in this class of case."

and a little further on his lordship said:

"Like all laws, this one must be enforced with mercy ... the range of guilt is so wide that there is ample room for both mercy and severity."

In this case I am satisfied that the appellant who may be classed as a 'young man' and who was being sent to prison for the first time had not only not received a "short time" in prison but, in addition, he has not had the benefit of a social welfare officer's report or of a non-custodial sentence extended to him such as a fine, binding-over or a suspended sentence. Nor does it clearly appear from the court record that the appellant's guilty plea was ever taken into account by the learned trial magistrate. Certainly no mention was made of it in sentencing the appellant.

In the circumstances I am able to show the appellant some mercy. Bearing in mind that he has already served almost 8 months in prison (which translates into an effective term of 12 months imprisonment with remission) the appeal against sentence is allowed and in lieu thereof I impose a sentence of 9 months imprisonment. Furthermore and in the exercise of the Court's revisional jurisdiction, the sentence in Savusavu Magistrate Court File No: 245/95 is also reduced to 9 months imprisonment, with both sentences ordered to be served consecutively.

The practical outcome of the appeal is that the cumulative sentence which the appellant must now serve for both offences is 18 months imprisonment with effect from the 9th of January 1995.

(D.V. Fatiaki)
JUDGE

At Labasa,
17th July, 1995.

HAA0022J.95B