IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION
Criminal Case No. HAC 09 of 2018

STATE

v

PETAIA NABUKABUKA

Counsels:		Mrs. D. Kumar for the State
			Ms. K. Boseiwaqa (L.A.C.) for the Juvenile

Date of Plea: 		25 July 2018
Date of Mitigation:  	27 July 2018
Date of Punishment:  	01 August 2018

FINDING AND ORDERS

1.	The accused in this case is a juvenile, a “young person” in terms 	of the Juvenile Act. It is therefore forbidden that any media 	organization publish information that may lead to the 	identification of the accused or the victim in this case, although 	the facts of the case and resulting orders may be published.

2.	The accused is sixteen years of age (born 16 May 2002) and 	lives with his parents in Vanua Levu. 

3.	On the 23rd January 2018, the victim aged 9 years of age was 	walking from her home in the early evening to school to attend 	revision classes. On the way the accused, who was then 15 	years old intercepted her and led her to a grassy area near a 	drain. He told her to remove her shorts and underwear, which 	she did and he removed his. He then proceeded to penetrate her 	with his penis. The victim was in pain, crying. The accused 	desisted and dressed himself. He told her not to tell anybody 	and told her to carry on to school. When she got home, her 	mother noticed blood on her underwear. The child told her 	parents that the accused had poked her with his finger. 

4.	A medical examination the next day revealed that her hymen 	was not intact and there was a laceration to her genitals.

5.	The accused was arrested and admitted the offence to the 	police. He told them that he knew that the victim was very 	young and that it was wrong but he had seen sex in movies and 	wanted to try it for himself.

6.	The accused willingly entered a plea of guilty in this Court to 	the charge of rape and on agreement to the facts rehearsed 	above, the Court made a finding of guilty to the offence. 

7.	Counsel representing the accused told the Court in mitigation 	that he left school in November last year before finishing Form 	3. He was persuaded by peers to leave home and go to Labasa to 	work as a cane cutter. 

8.	He has since returned home and earns $100 per week farming 	root crops. He has a strong desire to return to school.  He has a 	clear record and is very remorseful. His parents are very 	supportive and determined to monitor and guide him in the 	future. 
9.	On arrest he had been remanded at the Labasa Police Station 	and that had been an extremely bad and edifying experience for 	him. The accused and the victim live in the same settlement and 	although they are distantly related, they had little social contact 	with each other. 

10.	Two social welfare reports were obtained one on each of the 	accused and the girl. 

11.	The report relating to the juvenile accused confirmed that he is 	remorseful, appreciates the seriousness of his actions and he is 	determined to never sexually abuse another again. 

12.	In the last term of school in 2017 he went to Labasa to visit his 	cousin and ended up staying there working as a cane cutter. He 	had “lost his way” and wanted to distance himself from parental 	discipline. He is now wanting to return to school and is reunited 	with his parents.

13.	His father is an elder in the church and he states that he will in 	future be a responsible parent and supervise his son closely. 

14.	The Social Welfare Report concludes with the recommendation 	that he has constant and stable parental guidance and 	supervision to guide him through this critical stage of his young 	life.

15.	The report on the victim states that she has been 	psychologically and emotionally affected and her parents have 	been advised to give her loving support.

16.	Professional Counseling has been arranged for her.

Analysis

17.	Arriving at an appropriate punishment for a juvenile charged 	with criminal harm of another involves a very careful balancing 	exercise. 

18.	Rape is of course a very serious offence for which adult 	offenders receive very long terms of imprisonment. 

19.	The terms of both the Juvenile Act and the Sentencing and 	Penalties Act discourage the incarceration of a juvenile except 	perhaps for homicide offences where the maximum term of 	imprisonment can be no more than two years and then not in 	an institution housing convicted adult prisoners. 

20.	In the case of an offender under the age of 17, a court must 	explore every avenue of punishment.as an alternative to 	imprisonment. 

21.	As in every case of rape or other sexual abuse the victim will be 	psychologically impaired and forced to relive the trauma of the 	event for a very long time. Such damage must be a factor to 	consider in the punishment orders made against the 	perpetrator.

22.	The Court accepts that the accused is very remorseful and his 	parents determined to see that he is steered back on to a 	responsible and law abiding path. 

23.	The young man has his whole life ahead of him with a strong 	desire to resume studies and harsh penalties meted out to him 	now will certainly ruin his future career and status in the 	community.

24.	Pursuant to section 16 of the Sentencing and Penalties Decree, I 	order that no conviction be recorded against the accused 	following on from my finding of guilty of the offence. 

25.	In addition I make the following orders:

Orders

1.	The accused is placed on probation for a period of 18 months from today.

2.	Should the accused not comply with directions of the Probation Officer, then the officer is to report such insubordination to the Court and the accused will be brought back to Court for a review of his punishment.

3.	The accused is to live with his parents for the next 18 months and not to leave their care without the leave of this Court, such leave only to be given on the advice of the Probation Officer. 

		P. K. Madigan
	      Judge

At Labasa 
01 August 2018