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Qiladrau v State [2000] FJLawRp 40; [2000] 1 FLR 130 (30 June 2000)

[2000] 1 FLR 130

IN THE HIGH COURT OF FIJI

MALELI QILADRAU

v

STATE

High Court Criminal Appellate Jurisdiction
Pathik, J
30 June, 2000
HAA48/00 (on appeal from MC Crm Case 2605/99S)

Appeal against severity of sentence - Unnatural offence/carnal knowledge of 6 year old - Penal Code s175 (a) - United Nations Convention on the Rights of the Child articles 16 and 19.

The accused was convicted on his own plea and sentenced to 5 years imprisonment for forcible carnal knowledge of a 6 year old class one boy against the order of nature. He appeals against severity of sentence.

Held - (1) The sentence for buggery, while meriting a long custodial sentence, and taking into account a guilty plea, should at the same time show the importance of indicating to the public at large, and to anyone minded to commit an offence of this nature the total unacceptability of such conduct towards a child and a violation of the UN Convention on the Rights of the Child.

(2) Factors to consider in sexual attacks on young children: overall gravity of the offence, the necessity for punishment of the offender, the necessity to protect the public from the activities of someone who, sniffed solvent and then, having his sexual inclinations aroused, committed such an offence, the public concern at sexual offences against young children, deterrent effect of sentence, aggravating features such as the position of the appellant relative to the child, the effect on the victim, physical injuries to the victim.

Sentence reduced from 5 to 4.5 years.

Cases referred to in judgment
ref R v Peter Charles Willis 60 Cr. App. R. 146
ref Attorney-General's Reference No. 7 of 1990 in R v Stephen Peter Jones 92 Cr. App. R. 288
cons Joseph Mallloy [1997] 1 Cr. App. R. (S.)

Appellant in person
Resina Senikuraciri for the respondent

30 June 2000.

JUDGMENT

Pathik, J

In the Magistrate's Court at Suva, on 18 November 1999 the appellant was on his own plea convicted of the offence of unnatural offence contrary to section 175(a) of the Penal Code Cap. 17 and sentenced to imprisonment for five years.

The Particulars of Offence is that:

MALELI QILADRAU on the 30^th day of October, 1999 at Kadavu in the Eastern Division had carnal knowledge of ISIMELI TUILOMA against the order of nature.

The appeal is against severity of sentence.

Appellant's submission

The appellant asks the Court to reduce the sentence because it is harsh and excessive. His grounds of appeal are that he pleaded guilty and that there are no aggravating circumstances to warrant such a sentence. He is remorseful of his actions. The appellant is a 35 year old farmer from Kadavu.

Respondent's submission

The learned Counsel for the State submits that the sentence is quite lenient and not harsh and excessive. She referred the Court to R v Peter Charles Willis 60 Cr. App. R. 146 C.A. where sentencing principles for homosexual offences against boys are set out ranging from three to five years. She also referred to Attorney-General's Reference No. 7 of 1990 in R v Stephen Peter Jones 92 Cr. App. R. 288 where the Court of Appeal issued guidelines for sentencing offenders convicted of sexual attacks on young children.

She said that the child complainant suffered physical injury as stated in the Medical Report. There was an abuse of trust relationship as the appellant lived next door to the complainant in a closely knit Fijian village. Counsel submitted that emotional, psychological and moral corruption are natural consequences of such despicable acts to young victims. She further submitted that acts of this nature clearly violates the rights of children that are enunciated in the United Nations Convention on the Rights of the Child which Fiji has ratified in 1993.

Counsel submitted that the learned trial Magistrate properly sentenced the appellant and asks that the appeal against sentence be dismissed as it is without merit.

The facts of the case which were admitted by the appellant are correctly stated as follows by the learned Counsel for the State:

The facts

On 30/10/99, at about 2.30 p.m., the complainant, a 6 year-old Class One student of Dagai village in Kadavu was on his way to play on a swing a little distance from his house. Between his house and the swing, however, was the Appellant's house. As the complainant reached the appellant's house, the appellant called out to the young boy to go into the house where he was and then they will go and collect some kavika. The complainant went close to the appellant's house and said that he was not interested. The appellant then called again from inside the house, inviting the boy inside and saying that they should go and collect some kavika. The complainant was still standing at the doorway of the appellant's house when the appellant suddenly grabbed the complainant and lifted him into the house. The accused then put the complainant on the bed facing downwards, undressed the boy and proceeded to penetrate the boy's anus with his penis. After the appellant finished with his act, he then got dressed and went away. The complainant, who was in great pain went back to his house and informed his mother about the incident. The matter was reported to the police. The appellant was located, interviewed under caution charged with the offence of an unnatural offence contrary to s.175(a) of the Penal Code, Cap. 17.

Consideration of the appeal

Upon a careful consideration of the submissions by the appellant and the learned counsel for the State as well as upon my perusal of the Appeal Record I find, subject to what I have to say hereafter, that there is very little merit in the appeal.

This offence is a felony and attracts a penalty of up to 14 years' imprisonment. The Magistrate has powers to sentence up to 5 years. The appellant pleaded guilty and when sentencing he said "after taking 1/3 compulsory remissions into account, I order that you be sentenced to 5 years' imprisonment with effect from today". If that was what he intended to do then according to my understanding of what he said the sentence would come to 5 years less 20 months (1/3) that is 3 years 4 months.

This was a nasty and wicked assault committed by the appellant on a child of tender age of 6. No doubt his behaviour required a long custodial sentence but then it was to his credit that he pleaded guilty for which some consideration should have been given and that is of particular importance in cases of the kind where the trauma of giving evidence on the part of young victim is a particular danger. The sentence should at the same time show the importance of indicating to the public at large, and to anyone minded to commit an offence of this nature the total unaccceptability of such conduct towards a child.

In Jonathan Mark Landy (1995) 16 Cr. App. R. (S) 908 at 909-910 Popplewell J in a case of 'plea of guilty' said:

"As a matter of general policy courts will give credit to a defendant who pleads guilty because the court recognises thereby some remorse, the saving of time and the avoidance of witnesses having to attend court."

In this regard Miss Senikuraciri has quite rightly pointed out that an aggravating feature in this case is that acts of this nature clearly violate the rights of children that are enunciated in the United Nations Conventions on the Rights of the Child which Fiji had ratified in 1993. This convention was adopted by the United Nations General Assembly on 20 November 1989; the Convention came into force on 2 September 1990, in less time than any other Human Rights convention.

Just how seriously the rights of the child are taken can be seen from the following Articles of the Convention:

Article 16

No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation.

The child has the right to the protection of the law against such interference or attacks.

Article 19

1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

The law is there to protect such children who are often in a vulnerable position. This indeed was a forcible buggery of a child very much equivalent to rape if it was committed on a woman. One of the aggravating features here is that the appellant was a person who was like a father to the victim. The effect on the victim does not require elucidation.

In Joseph Mallloy [1997] 1 Cr. App. R. (S.) C.A. the sentence was reduced from 7 years to five years for buggery of a boy aged 15 by a man on an isolated occasion as in the case before me.

The case of Jones (supra) sets out guidelines on matters to be taken into account in cases of sexual attacks against young children when passing sentence. The headnote reads:

In sentencing offenders convicted of sexual attacks on young children, the sentencing judge should take the following aspects into account: 1. The overall gravity of the offence. 2. The necessity for punishment of the offender. 3. The necessity to protect the public from the activities of someone who, as in the instant case, sniffed solvent and then, having his sexual inclinations aroused, committed such an offence. 4. The public concern at sexual offences against young children. 5. What it was hoped would be the deterrent effect, i.e. the effect which a severe sentence might have on other people minded to act in such a manner.

I have borne the above factors in mind in considering whether the learned Magistrate had passed appropriate sentence. There was physical injury to the boy's anus but evidently it healed but it must have been terrifying to him. As the Lord Chief Justice said in Jones (supra) at p.290:

It is of course impossible to say at this stage what, if any, psychological effect it may have upon her. One very much hopes none. That is something for the future which one can never know.

On sentence, in this type of offence, the following closing remarks of Lawton L.J in Willis (supra) at p.150 is worth noting:

In our judgment when the danger to small boys is balanced against the mitigating factors, the result indicates that the appropriate sentence is one which is likely to keep the appellant out of trouble for a fairly long period and give him enough time to mature mentally, if he ever is going to do so. In our judgment the sentences passed upon him by Judge Streeter achieved this result. It was for these reasons we dismissed the appeal.

In all the circumstances of this case bearing in mind the matters I have indicated and the five factors to be considered I think that a discount should have been given for the plea of guilty albeit a small one.

What I propose to do therefore is to make a small reduction, that is to quash the sentence of five years' imprisonment and substitute therefore a sentence of four and-a-half years' imprisonment.

To that extent the appeal is allowed.

Appeal allowed.

Marie Chan