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State v PM [2012] FJHC 1075; HAC303.2012S (11 May 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 303 OF 2012S

STATE

vs

P. M.
[a juvenile aged 16 years 8 months 5 days]

Counsels : Ms. L. Latu for State
Mr. N. Sharma for Accused
Hearings : 12th March, 2012
Sentence : 11th May, 2012

SENTENCE

1. On 27th February and 12th March 2012, in the presence of your counsel, you pleaded guilty to the following charge:
   

FIRST COUNT

Statement of Offence

RAPE: Contrary to Section 207 (1) (2) (b) of the Crime Decree No. 44 of 2009.

Particulars of Offence

P. M. on the 19th day of September 2011 at Newton in Nasinu in the Central Division, penetrated the vulva of K. L. T. with his finger without her consent.

SECOND COUNT

Statement of Offence

SEXUAL ASSAULT: Contrary to Section 210 (1) (a) of the Crime Decree No. 44 of 2009.

Particulars of Offence

P. M. on the 19th day of September 2011 at Newton in Nasinu in the Central Division, indecently assaulted a girl namely K. L. T.

2. The prosecution read her summary of facts. Briefly, they were as follows. You are related to the 3 year old complainant. She was your niece, and you resided with her, in the same house. On the 19th September 2011, between 10 am and 11 am, you and the victim were at home. You walked up to the victim, pulled up her dress, lay on her vagina, and findle the same. You inserted your finger slightly into her vagina, and later licked her vagina, with your tongue. A relative interrupted you, and you fled the scene, when discovered. The matter was reported to police, and an investigation was carried out.
   
3. You were caution interviewed by police on 20th September 2011. You admitted the offences to the police. The child was medically examined on 19th September 2011, and the medical report said, "...there was a tear at the 6 o'clock position at the vulva (outside vaginal opening), tear on either side of vaginal opening, hymen intact, and no bleeding or discharge..."
   
4. After the summary of facts were read, the court checked with your counsel to see that, all the elements of the two counts were admitted by you. On the first count, ie. rape, your counsel admitted on your behalf that, you penetrated the complainant's vagina, with your finger. The victim was under 13 years old, and therefore incapable of giving consent in law. You admitted, through your counsel that, you knew the child was incaple of giving her consent. On the second count ie. sexual assault, you admitted that, you licked the victim's vagina on 19th September 2011, knowing she was incaple of giving her consent, and that she did not give her consent. Given your admissions above, the court found you guilty as charged on the two counts.
   
5. I have taken note of your written plea in mitigation, and your antecedent report. I note this is your first offending. I have read the victim impact report. I have read the sentence submissions, and all the papers submitted by the parties.
   
6. Rape is a serious offence. The maximum sentence is life imprisonment. For adults, the tariff is a sentence between 7 to 15 years imprisonment: see Mohammed Kasin v The State, Criminal Appeal No. 21 of 1993, Fiji Court of Appeal; Bera Yalimaiwai v The State, Criminal Appeal No. AAU 0033 of 2003, Fiji Court of Appeal; Navuniani Koroi v The State, Criminal Appeal No. AAU 0037 of 2002, Fiji Court of Appeal and Viliame Tamani v The State, Criminal Appeal No. AAU 0025 of 2003, Fiji Court of Appeal.
   
7. Since the complainant in this case was a juvenile, that is, age 3 years old, the tariff for the rape of children is a sentence between 10 to 15 years: see Mark Mutch v The State, Criminal Appeal No. AAU 0060 of 1999, Fiji Court of Appeal; State v Lepani Saitava, Criminal Case No. HAC 10 of 2007, High Court, Suva; The State v AV, Criminal Case No. HAC 192 of 2008, High Court, Suva; State v VV, Criminal Case No. HAC 084 of 2009, High Court, Suva and State v Waqabaca, Criminal Case No. HAC 139 of 2008, High Court, Suva.
   
8. "Sexual Assaults" carries a maximum sentence of 14 years imprisonment. It is an aggravated from of indecent assault. The tariff has yet to be established.
   
9. This case involved a 16 year old juvenile preying on a 3 years old juvenile. A juvenile cannot be imprisoned for more than 2 years on any offence [section 30(3) of the Juvenile Act, chapter 56]. A juvenile can only be imprisoned, if two pre-condition are satisfied:
   
   • (i) the court certifies that he is so unruly a character that he cannot be detained in an approved institution; or
     
   • (ii) that he is so depraved a character that he is not a fit person to be so detained.
     

Of course, the sentence given, on any juvenile, will depend on the aggravating and mitigating factors, in this case.

10. In this case, the mitigating factors are as follows:
    
    • (i) you are a juvenile, aged 16 years old;
    • (ii) this is your first offence;
    • (iii) you are educated to class 6 level;
    • (iv) come from a broken family;
    • (v) co-operated with police during the investigation;
    • (vi) you have been remanded in custody, at the Boys Centre, since 21st September 2011, ie. a period of approximately 8 months.
      
11. The aggravating factors are as follows:
    
    • (i) The 3 year female complainant is your niece. You are related to her, as an uncle. You were in a position of trust to her, at the age of 16 years. You breach the trust she had in you.
      
    • (ii) The rape of a child is always a serious offence, and the courts always takes a deem view of those who commit these type of offence. Children are the most vunerable in society, and the court must always act to protect them, whenever their rights are violated.
      
    • (iii) By sexually violating the 3 year old child, you showed utter disregard to her safety and well being, including her dignity.
      
12. I consider you a depraved character. For count No. 1, I start with a sentence of 12 months. For the aggravating factors, I add 4 months, making a total of 16 months. For the mitigating factors, I decrease the sentence by 4 months, leaving a balance of 12 months.
    
13. On count No. 1, I sentence you to 12 months imprisonment. On count No. 2, I sentence you to 6 months prison. Both sentences are concurrent to each other, ie. total sentence is 12 months prison.
    
14. However, since you have been remanded in custody since 21st September, 2011, that is, approximately 8 months ago, and given the standard 1/3 discount given to prisoners when sentenced by a Court of Law, I am of the view that you have already served your 12 months imprisonment, effective from 21st September 2011. I therefore discharge you. You are free to go home.
    

Salesi Temo

JUDGE

Solicitor for the State : Office of Director of Public Prosecutions, Suva

Solicitor for Accused : Legal Aid Commission, Suva