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State v YS [Juvenile] [2026] FJHC 87; HAC103.2025 (27 February 2026)

IN THE HIGH COURT OF FIJI

AT SUVA

CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 103 OF 2025

STATE

V

YS [JUVENILE]

Counsel: Ms U Ratukalou for the State
Ms S Chand for the Juvenile

Date of Hearing: 20 February 2026

Date of Sentence: 27 February 2026

PUNISHMENT

[1] YS, you are 14 years old. You have been found guilty after trial of two counts of rape of your younger biological sister. The offending occurred on 21 March 2025, when your sister was 12 years old.

[2] On that day, at your home, you penetrated your sister’s anus with your penis, and you also penetrated her mouth with your penis. These were deliberate acts of sexual violation committed against a younger sibling in a place where she was entitled to feel safe and protected.

[3] You pleaded not guilty, exercised your right to silence at trial, and the matter proceeded to a full hearing. The court, after considering all the evidence and the submissions, found you guilty on both counts.

Nature and Gravity of Offending

[4] Rape is a grave offence. The maximum penalty prescribed under section 207 of the Crimes Act 2009 is life imprisonment. Both Parliament and the courts have recognized rape of children as among the most serious forms of criminal conduct.​

[5] The Supreme Court in Aitcheson v State FJSC29 has set a tariff of between 11 and 20 years’ imprisonment for the rape of a child. The tariff operates as a guide for adult offenders, but it also illustrates the level of denunciation which the courts attach to this type of offending.

[6] In your case, there are significant aggravating features. Your sister was 12 years old and therefore particularly vulnerable. You were her elder brother. You grew up together and lived together in the same home. She was entitled to look to you for care and protection. Instead, you abused her trust and your authority as an older sibling.

[7] The offending occurred in the family home. The home is meant to be a place of safety, especially for children. When serious sexual abuse occurs in that environment, it undermines the victim’s sense of security in the most fundamental way.

[8] The victim impact material before the court demonstrates that your sister has suffered serious and continuing psychological harm. She reports ongoing emotional and psychological trauma which has affected her daily life. This harm is likely to endure beyond the conclusion of these proceedings.

Personal Circumstances and Mitigation

[9] You are a child in conflict with the law. You were 13 turning 14 at the time of the offending, and you are now 14 years old. You are a first offender, and you have no previous adverse records.

[10] You are enrolled at Pacific Polytech, Nabua Campus, in a preliminary plumbing course, and you have expressed a wish to pursue further training. Vocational education is an appropriate pathway for you, given your academic history.

[11] You have been remanded at the Fiji Juvenile Rehabilitation and Development Centre (FJRDC) since late March 2025, because there was no suitable relative able to stand surety for you. You have therefore spent just under 11 months in custody.

[12] The pre-sentence report records that you presented as calm, respectful and cooperative during interview. At the Centre you have complied with rules and have gradually improved your attitude, behaviour, and participation in structured activities. You have engaged in literacy and numeracy classes, art and craft, character building and social interaction sessions.

[13] The Welfare Officer assesses that, with appropriate supervision, counselling and support, you have the potential for positive behavioral change and successful reintegration into the community. The report emphasizes that rehabilitation for you should focus on discipline, education, counselling, and structured supervision.

[14] The report also notes that you presently do not have a suitable or stable family member who can provide adequate supervision, care and support upon release. Because of the nature of the offence and the impact on your sister, home-based supervision is not considered appropriate at this time. A structured and supervised residential placement or continued institutional supervision is recommended.

Submissions of Counsel

[15] The State submits that, having regard to section 4 of the Sentencing and Penalties Act 2009, the court must consider the maximum penalty, current sentencing practice and applicable guidelines, as well as the nature and gravity of the offending and the harm caused to the victim. The State identifies as aggravating factors the complainant’s young age, her particular vulnerability, the breach of trust involved in an elder brother sexually abusing his younger sister, and the significant and continuing psychological harm suffered by the complainant.

[16] Ms Ratukalou for the State accepts that you are not of unruly or depraved character within the meaning of section 30 of the Juveniles Act. Counsel submits that rehabilitation should weigh heavily in the court’s consideration. The State invites the court to consider a community-based corrections order under sections 9, 10 and 13 of the Community-Based Corrections Act 2018, together with appropriate counselling and supervision conditions, and proposes that any term of detention be suspended for a period of three years.

[17] Your counsel, Ms Chand, in mitigation, emphasizes your age, that you are a first offender, your time already spent at the Juvenile Centre, your enrolment at Polytech and your expressed desire to continue your education and become a productive member of society. Counsel submits that every effort should be made to keep young first offenders out of prison, relying on authorities which stress that imprisonment for juveniles should be a last resort, and that non-custodial measures should be carefully considered.

[18] Ms Chand relies on decisions such as State v JR (Juvenile) [2019] FJHC 823 and State v N (Juvenile)[2025] FJHC 496 to submit how the High Court has previously crafted short and, at times, largely suspended custodial terms for juvenile rape offenders, combined with counselling and supervision.

[19] Ms Chand invites the court to consider a non-custodial outcome, including the possibility of a wholly suspended term of imprisonment, community-based orders, and continued counselling. Counsel also submits that the court should consider whether a conviction should be recorded, drawing attention to section 16 of the Sentencing and Penalties Act and the impact which a conviction and a custodial term may have on your future educational and employment prospects.

Legal Framework for Juvenile Sentencing

[21] In sentencing a child in conflict with the law, the court must apply the Sentencing and Penalties Act 2009 together with the Juveniles Act and any relevant provisions of the Community-Based Corrections Act 2018. Section 4 of the Sentencing and Penalties Act sets out the purposes of sentencing which include punishment that is just in all circumstances, and the establishment of conditions that promote and facilitate the rehabilitation of offenders.

[22] Section 15 of the Sentencing and Penalties Act provides a wide range of sentencing options, including imprisonment (which may be suspended in whole or in part), community work, community-based corrections orders, and fines. Section 16 provides that the court has a discretion whether or not to record a conviction, having regard to the nature of the offence, the character and past history of the offender, and the impact of a conviction on the offender’s social and economic wellbeing and employment prospects.

[23] Section 30 of the Juveniles Act provides that no child shall be ordered to be imprisoned for any offence. A young person (14 to under 18) may only be imprisoned if the court certifies that he is of such an unruly or depraved character that he cannot properly be detained in an approved institution, and any term of imprisonment must not exceed two years. These provisions ensure that for children and young persons, detention in prison is an exceptional measure and for strictly limited duration.

[24] The courts have repeatedly stated that imprisonment must be a measure of last resort for young first offenders and that non-custodial measures should be carefully explored, provided that such measures adequately recognize the gravity of the offending and protect the community.

[25] At the same time, the fact that an offender is young does not remove the court’s duty to denounce serious sexual offending, particularly sexual abuse of children within the family home. In cases of intra-familial rape of a child, the courts have held that general deterrence and denunciation remain important sentencing purposes, though in the case of juveniles they must be balanced against strong rehabilitative considerations.

Assessment

[26] Your offending is serious. You raped your 12-year-old sister anally and orally, in your home. The breach of trust and the abuse of your position as an older brother are grave aggravating factors. The psychological harm to your sister is significant and ongoing.

[27] If you were an adult, the appropriate starting point, having regard to the tariff set by the Supreme Court and the aggravating factors present, would likely be within the mid to upper range of the 11 to 20-year guideline, before personal mitigation.

[28] However, you are not an adult. You are a 14-year-old child with no prior history. The law recognizes that children have a greater capacity for change. The pre-sentence report and the material from FJRDC show that you have responded positively to structure, counselling and education. You have engaged with the rehabilitation programmes offered and demonstrated improved behaviour.

[29] The court also takes into account that you have already spent almost 11 months at the Juvenile Centre. That period of detention has been significant in the life of a 14-year-old. It has exposed you to the consequences of your actions and it has allowed you to begin the process of rehabilitation in a structured environment.

[30] A very important factor is that there is, at present, no suitable or safe family environment for you to return to. Because the complainant is your younger sister, you cannot be placed back in the same home. The Welfare Officer advises that continued institutional care or a supervised residential placement is necessary for your protection, for the protection of the complainant, and to support your rehabilitation.

[31] In determining the appropriate orders, I must ensure that the response to your offending reflects its seriousness, recognizes the harm done to your sister, protects the community, and at the same time promotes your rehabilitation and reintegration. The orders must also take into account the statutory limits and protections applicable to children.

Determination

[32] In light of all these factors, if you were an adult, I would have adopted a starting point well in excess of 11 years’ imprisonment. For the reasons already stated, I do not do so. Instead, I consider that for a child of your age, an overall punitive response equivalent to a short term of detention, combined with strict supervision and rehabilitative conditions, is appropriate.

[33] I am satisfied that you are not of such an unruly or depraved character that you cannot be managed within the juvenile system. I therefore do not consider that a further immediate term of imprisonment in an adult facility is necessary or appropriate at this time.

[34] Having regard to section 15 and section 26 of the Sentencing and Penalties Act, and to section 30 of the Juveniles Act, and taking into account the period you have already spent at the Juvenile Centre, I impose a term of imprisonment of 2 years on each count, to be served concurrently. Of that term, the period you have already spent in custody from 28 March 2025 until today (1 year) is to be regarded as time served.

[35] Pursuant to section 26 of the Sentencing and Penalties Act, the balance of that term (1 year) is wholly suspended for a period of 3 years from today, on condition that during that period you do not commit any offence punishable by imprisonment. If you breach that condition, the court may order that you serve all or part of the suspended term.

[36] I further order, pursuant to section 15(1)(e) of the Sentencing and Penalties Act and the Community-Based Corrections Act 2018, that you be subject to a community-based corrections order for a period of 3 years from today, on the following conditions:

(a) You are to be placed in a supervised residential or approved care facility or remain under structured supervision at an approved juvenile institution, as directed by the Department of Social Welfare and the relevant juvenile authority.

(b) You are to continue your enrolment and attendance at the Pacific Polytech plumbing course, and any further approved vocational training, as directed by your Welfare Officer.

(c) You are to attend and participate in one-to-one counselling with Empower Pacific, and in any group counselling, behavioral therapy, or character-building programmes directed by your Welfare Officer.

(d) You are to comply with all lawful directions of your supervising officer, including directions about residence, curfew, education, employment, and participation in approved programmes.

(e) You are not to have any contact, direct or indirect, with the complainant unless approved and supervised by the Department of Social Welfare.

[37] The Department of Social Welfare is directed to assume responsibility for your care and supervision, to identify and approve an appropriate residential placement, and to file with the court, within 3 months, a progress report outlining your placement, programme participation, and any further recommendations.

Warnings and Explanation

[38] You need to understand that what you did to your sister was a very serious wrong. You have taken away her sense of safety and trust in her own home. She will carry the effects of these offences for a long time. The orders I have made are designed to hold you accountable, to protect your sister and the community, and to give you a real opportunity to change your life.

[39] If you take advantage of the counselling, education, and support you will receive, you can still make something good of your future. If you breach the conditions of the suspended term or commit further offences, you risk serving the remainder of your sentence in custody.

[40] You have 30 days to appeal against this punishment if you wish to do so.

...............................................
Hon Mr Justice Daniel Goundar
Solicitors:
Office of the Director of Public Prosecutions for the State
Legal Aid Commission for the Accused