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State v Drose [2012] FJMC 329; Criminal Case 32.2012 (4 December 2012)

IN THE MAGISTRATE'S COURT OF NASINU

Criminal Case No. 32/2012

DPP

-v-

TANIELA DROSE

Mr. Meli Vosawale for the State [DPP]

The accused appeared and represented by Legal aid duty solicitor Ms. M. Tarai.

Sentence

[1] The accused, juvenile was charged for following offences;

First Count:

Sexual Assault: Contrary to section 210(1)(a) of the Crimes Decree no: 44 of 2009.

Second Count:

Rape: Contrary to section 270(1)(2) (a) of the Crimes Decree no: 44 of 2009.

[2] The Case was remitted under extended jurisdiction. The Accused pleaded guilty at first instance. The juvenile has been found guilty for these counts on his own plea.

[3] The facts of the case are reproduced as follows; On the 21st of December 2011 after 2pm Taniela Drose (hereinafter referred to as "the juvenile") carried the complainant (her sister) from their sitting room when she was asleep. The complainant screamed when the juvenile was carrying her, the juvenile then tried closing her mouth with his right hand, when the complainant struggled to get away, the juvenile kept pulling her to him and tied her hands. The juvenile made the complainant stand beside the bathroom wall – the complainant then saw the juvenile putting his hand inside her panty and rubbing her vagina whilst his other hand held his penis. The incident was witnessed by their grandmother. On the 24th of December 2011, the complainant was asleep in the sitting room with her mother and younger brother when the juvenile came inside the sitting room. The juvenile then started fondling the complainant's breast and began touching her body, whilst touching her body; the juvenile removed the complainant's shorts and panty – the juvenile then place his hands on the complainants mouth when she wanted to scream. The juvenile pulled out his penis and inserted it inside the complainants vagina, the juvenile utter words 'I will rape you' whilst committing the act on the complainant. The complainant struggled and managed to 'kick off' the juvenile then ran to the toilet, the juvenile followed suit and pushed open the toilet door, entered inside the toilet and pulled out his penis and inserted it into the complainants vagina – the complainant felt pain when the juvenile was committing this act on her. The complainant was medically examined on the 24th of December 2012 by Dr. Evelyn Tuivaga, medical findings suggest that thy hymen is intact, and ½ (half) centimeter bruising, on both lateral walls of the vagina (outer surface) specifically indentifying that there was sexual abuse.

[4] Tariff for the sexual assault yet to be established. But in CRIMINAL CASE NO. HAC 075 OF 2010S STATE vs SAULA TUWAI His Lordship Justice Temo imposed 4 years imprisonment for sexual assault.

[5] The tariff for rape of a child is between 10 - 14 years imprisonment. (Mark Lawrence Mutch v. State Crim.App. No. AAU 0060 1999; Mani v. State, Crim.App.HAA 0053.02L; State v. Saitava, Crim.Case No. HAC 10/07, State v. Tony Cr. App. No. HAA 003/08).

[6] The Accused is 15 years old at the time of the incident. In Section 30 of the Juvenile Act prescribes a maximum sentence of 2 years irrespective the gravity of offence.

[7] The aggravating factors are;

(i) The victim regarded is the juvenile's sister.

(ii) It is this relationship of trust that is the strongest aggravating factor against the accused.

(iii) The juvenile is regarded by the victim as her big brother, in raping and sexual assault offence on her, the accused person took advantage of the trust that the victim had placed on him.

(iv) Moreover his actions demonstrate a complete disregard of the clearly defined societal, religious and traditional rules that prohibit sexual relations between brothers and sisters.

(v) the accused person took advantage of the victim's naivety and trust when he committed these offending having no regard to the long term effects that his actions might have on her.

[8] The mitigating factors are;

1. The juvenile is 16 years of age.
   
2. He is currently in remand at the Boys Center.
   

100. He was overcome with lust and sexual curiosity as he had watched some pornographic movies, which led to commit these offences.
     

4. The juvenile was brought up in a broken family. His father passed away from cancer when the juvenile was a toddler and so he never had the opportunity to know his father nor know that the fathers love would feel like.
   
5. He wishes to ask for forgiveness from his family especially his sister (complainant) for his actions. He acknowledges and understands that he had committed a very grave wrong. He also acknowledges that his actions have caused major negative impacts on his sisters life and future and for that, he is really sorry.
   

[9] The Juvenile Act of Cap 56 Section 32 clearly states the manner to which a Court may deal with a juvenile once the Court is satisfied of the finding of guilt of the juvenile, which state as follows:

"32. (1) Where a juvenile is tried for an offence and the Court is satisfied of his guilt, the Court shall take into consideration the manner in which, under the provisions of this or any other written law, the case should be dealt with, namely"

(a) By discharging the offender under Section 44 of the Penal Code;

(b) By ordering the offender to pay a fine, compensation or costs;

(c) By ordering the parent or guardian of an offender to pay a fine, compensation or costs;

(d) By ordering the parent or guardian of the offender to give security for the good behavior of the offender;

(e) By making a care order in respect of the offender;

(f) By making a probation order in respect of the offender;

(g) Where the offender is a young person, by ordering him to be imprisoned;

(h) By dealing with the case in any other lawful manner".

[10] I consider the objectives of Sentencing and Penalty Decree. We further refer to Section 15 (3) of the Sentencing and Penalties Decree which states;

"As a general principle of sentencing, a Court may not impose a more serious sentence unless it is satisfied that a lesser or alternative sentence will not meet the objectives of sentencing stated in Section 4, and sentences of imprisonment should be regarded as the sanction of last resort taking into account all matters stated in this Part".

[11] In State v Mocevakaca&#1990] FJHC 87; 87; [1990] 36 FLR 19 (14 February 1990) Fatiaki J (As he then was) dealt with a rape case. His Lordship stressed ntencing in young offenders said;

<"This court has said before and I say it again that our prisons are already too full of young Fijian men and the courts have a duty to try and reverse that trend wherever it is possible and just. In other words, every effort must be made to keep young first offenders out of prison even I might add at the risk of being lenient.

Needless to say, in the case of young first offenders there can rarely ever be any conflict between the general public interest and that of the offender.

If I may say so society has no greater interest than that its young people should became useful law-abiding citizens and the difficult task of the Courts is to determine what punishment or treatment gives the best chance of achieving that end. The realisation of that objective is the primary and by far the most important consideration in sentencing young first offenders." (Emphasize is mine).

[12] In State v T.V.K. [2011] FJHC 732; HAC014.2011 (12 October 2011), Justice Thurairaja imposed for the juveniles in that case to be kept under probation until they reached 18 years of age, complete their education, Probation Officers to submit reports on the juveniles and counselling programs for the juveniles. This was done after the Court had considered the fact that a conviction will cause irreparable damage to their future. Both juveniles in that case were charged with Rape and Sexual Assault.

[13] The charges are serious, but law always allows juveniles to give second chance. The accused is almost 11 months at boys Centre. I am guided by the above case laws and principles of law and I also consider his propensity to do crimes again. I therefore act under section 44 (2) and (3) of the Sentencing and Penalty Decree and adjourn proceedings for next 3 years. The Accused's sentence is withheld. I further impose following conditions under sections 15(1) (g) and 44(3) of said Decree.

A] The accused is bound over for sum of $ 1000 for next three years to observe peace and good behaviour. If the accused breach any condition, this bond or part of it may be forfeited. In default, accused be sentenced to the prison in appropriate penalty units.

B] In addition to the above bond, the accused should not commit any offence whatsoever during this period. If you committed any offence or breached any condition you will be sentenced for this offence according to the law. Therefore you are conditionally discharged.

C] The accused is ordered to report last Sunday of every month between 6am to 6pm to nearest Police Station during 1 year, last Sunday of every three months during 2 year and last Sunday of every six months during final year (Until expiration of next 3 years). Therefore, the accused is placed on police supervision and he should not change his permanent address during this period of time without leave of the court or DPP.

D] Further the accused is placed under nearest probation officer's supervision. The accused should report to the probation office forthwith.

E] If the accused will comply above conditions, he will be discharged after 3 years under section 44(6) of the Sentencing and Penalty Decree 2009 without further punishment.

F] The accused must take this matter seriously; this is the final chance for his rehabilitation.

I] The Accused is placed on domestic violence standard non molestation order for lifetime, that he should not harass the victim, sexually, physically and mentally whatsoever under section 27 of the Domestic Violence Decree.

[14] Copy of this sentence is given to the accused and the police and nature of sentence and police supervision is explained to the accused. Police are ordered to file report any breach of these condition forthwith (if any). At the expiry of three years the accused should file "all clearance" report from the police station and probation report from the probation office to terminate the proceedings, till then the proceeding is on.

[15] 28 days to appeal.

On 04th December 2012 at Nasinu, Fiji Islands

Sumudu Premachandra [Mr.]
Resident Magistrate-Nasinu