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State v Tulevu - Sentence [2016] FJHC 564; HAC65.2014 (10 June 2016)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

Criminal Case No. HAC 65 of 2014

STATE

V

ILIMO TULEVU

Counsels : Ms. A. Vavadakua for State
Mr. A. Paka for the Accused

Date of Trial : 6, 7, 8 June, 2016
Date of Summing Up : 9 June, 2016
Date of Judgment : 9 June, 2016
Date of Sentence : 10 June, 2016

SENTENCE

(The name of the complainant is suppressed, the complainant will be referred to as “MK”)

1. In a judgment delivered on 9 June, 2016 the court found the accused guilty and convicted him for the lesser offence of defilement.
   
2. The brief facts of the case were as follows:
   

The accusedmet the complainant “MK” whilst he was a construction worker working on the Wairikibridge in August 2014. After three consecutive meetingsthe accused invited the complainant to his room after she had come to the camp site where the accused was staying.

On this night the accused did not have sexual intercourse with her.However, it was the next day that is 18th August 2014,there was sexual intercourse between the two. The complainant was 15 years of age and the accused was 38 years of age at that time. It was during the second meeting the accused informed the complainant that he wanted to have a relationship with her to which she agreed. Since the complainant was missing from her home her father reported her as a missing person. The complainant’s uncle came and took her with him to his house.

3. Defilement is having sexual intercourse with a girl between the age of 13 and 16. It is a serious offence which carries a maximum penalty of 10 years imprisonment.
   
4. Both counsels have assisted the court by written and oral submissions in support which is appreciated by the court.
   
5. Counsel for the accused presented the following mitigation on behalf of the accused:
   
   1. The accused was 38 years of age at the time of the offending;
   2. Sole bread winner of the family looking after his elderly father who is 81 years old;
   100. He was a first offender;
   4. Accused mother passed away when he was 21 years old;
   5. Accused has been in remand for 5 months and 1 day.
      
6. The accused called his father to give evidence on his behalf. His father informed the court that he was 81 years of age. The accused was the sole breadwinner for the family. He is the only son he has and that the accused has been taking care of him. The accused was doing subsistence farming and would buy him his basic needs. He is basically dependent on his son.
   
7. Counsel further says that this was a case of virtuous relationship and was a non-exploitive relationship. Counsel justifies this by saying that if it was not for the complainant’s father and the police, she would be still in a relationship with the accused. Further, counsel submitted that the accused on the first night together at his place respected her and did not exploit her. The accused had sexual intercourse only on the second night with the complainant. This was not a case of breach of trust or blood relations. Counsel relies on State v PraneetAnand Reddy High Court Case No. 96 of 2011 and State v Jese Kalounivalu High Court Case No. 10 of 2014. Counsel finally submitted that considering the current tariff for the offences of defilement if the final sentence is 3 years or less than a suspended sentence be considered.
   
8. The State Counsel submitted that there was a vast age difference between the complainant and the accused which was 23 years. There was no virtuous relationship since after three days of meeting there was sexual intercourse. The State Counsel stressed that the 23 years of age difference was an aggravating factor leading to the sexual exploitation of a child. The sentence should be one which will be a deterrent to the others. She further stated that a custodial sentence with a non-parole period will be justified. State Counsel relied on the case of EremasiRinasau v State High Court Case No. HAM 203 of 2014 and State v ShiuBalak High Court Case No. HAC 260 of 2014.
   
9. I accept the accused was 38 years of age at the time of the offending whereas the victim was 15 years of age. The age difference is substantial.
   
10. From the evidence of the accused it was obvious that he did not have any affection towards the complainant and never appeared interested in a relationship, although he had proposed to her in an earlier meeting that he wanted to have a relationship. It appeared to me that he was too keen to have sex with this young complainant. As a matured adulthe was expected to be more responsible.
    
11. The current sentencing tariff for the offence of defilement is from a suspended sentence to 4 years imprisonment(EliaDonumainasava v State [2001] HAA 32/01S, 18 May 2001). In State v Pita Vetaukula Criminal Case No. HAC 46 of 2013 (8 July 2014), this Court stated that suspended sentences are appropriate in cases of non-exploitive relationship between persons of similar age, while custodial sentence are appropriate in cases of sexual exploitation of younger girls by older men who hold a position of authority over the girls.
    
12. In Vetaukula (supra), the offender was sentenced to 18 months imprisonment after he pleaded guilty to a charge of defilement. The offender was the headman of the village. He was 22 years old when he defiled a 15 year old from his village. In sentencing the offender the court said:
    

The courts have a duty to protect the young girls from any form of sexual exploitation. In cases of sexual exploitationof young girls, the primary purpose of the sentence is general deterrence. Rehabilitation of the offender is a secondary purpose.

13. Suspended sentences are reserved for couples who are in a genuine “virtuous relationship” where there is evidence of a committed boyfriend and girlfriend relationship. This is not the case here. The accused met the complainant on three occasions only and from hisevidence in court it became obvious that he was not genuinely committed towards her. I do not accept that there was a virtuous, non exploitive relationship.
    
14. There has been an increase in offences of this kind in particular where the accused are matured adults. Having sexual intercourse with a girl of 15 years by a man who is more than twice her age is a sad indictment on the society. It appears that there are people in the community who do not pay any heed to the warnings given by court. The offence of defilement has been enacted to protect young girls from people like the accused. The accused has not shown any respect to a person who was just venturing to better things in life but for his personal lust.
    
15. It is the duty of the court to hand down a sentence which actsas a deterrent to the would be perpetrators.
    
16. In view of the above I take as a starting point 2 years imprisonment, to it I add 1 year 6 months been for the vast age difference as an aggravating factor bringing the interim total to 3 years 6 months imprisonment. For the mitigating factor I reduce the sentence by 1 year and I make a further deduction of 5 months for his remand period. The total imprisonment now stands at 2 years 1 month. Under section 18 of the Sentencing and the Penalties Decree, I imposed a non-parole period of 1 year 6 months before the accused is eligible for parole. In all the circumstances of the case suspension is not appropriate and I refuse to make such an order.
    
17. 30 days to appeal to the Court of Appeal.
    

Sunil Sharma
Judge
At Labasa
10 June 2016

Solicitors
Office of the Director of Public Prosecutions for the State
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