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State v VN - Sentence [2018] FJMC 116; Criminal Case 148 of 2018 (17 August 2018)

IN THE MAGISTRATES COURT OF FIJI
AT TAVUA
CRIMINAL JURISDICTION

Criminal Case No: 148 - 2018

STATE
-v-
VN

For Prosecution : Inspector Lenaitasi [ Police Prosecution ]
Accused : Ms Henao and Mr Samy [ Legal Aid Commission ]

Trial Date : 17^th day July 2018
Date of Judgment : 6^th day of August 2018
Date of Sentence : 17^th day of August 2018

SENTENCE

1. VN, after trial, I found you guilty of a representative count of defilement.
   
2. I have explained in my judgment why this is a representative count although prosecution have not specified that in the statement of the charge.
   
3. The allegation reads:
   

Statement of Offence

DEFILEMENT OF A YOUNG PERSON BETWEEN 13 AND 16 YEARS OF AGE: Contrary to section 215 of the Crimes Decree No. 44 of 2009.

Particulars of Offence

The defendant between the 1^st day of August, 2014 and the 31^st day of August, 2014 at Tavua in the Western Division had unlawful carnal knowledge of [ name omitted ] a young person being of or above the age of 13 years and under the age of 16 years.

4. You were 18 years old at the time of the offence and the victim was 15 years old. You treat her as your cousin. You are from the same village. You grew up together and went to the same primary school. In 2014, you approached and asked her to be your ‘girlfriend’. She agreed. Later in August of that same year at a cassava plantation, you had sex with her. You ejaculated inside her. She became pregnant as a result and gave birth to twins, both girls.
   
5. Despite her young age, the mother of your children tells me that her delivery was normal and there were no complications.
   
6. She had to drop out of school because she became pregnant and had to look after the children.
   
7. She is fortunate to have her family and uncle supporting her during this ordeal.
   
8. She tells me that you help out by providing fish but it is not often. You visit your daughters but even your visits are irregular too.
   
9. During the trial and when you gave evidence, you denied that you are the father of the children. You said that you only help out with the fish because you are related to the victim.
   
10. Your counsel has filed written mitigation to assist you.
    
11. I have considered this.
    
12. Amongst other things, your counsel submits that this was a virtuous or genuine relationship, you have cooperated with police, made a traditional apology to the family, you promise not to re-offend, you are a young first offender (22 years old now) and that a custodial sentence would affect your ‘lifestyle’ and employment as a Barber.
    
13. Your counsel refers me to the case of State v Raibevu [2012] FJHC 1040. In that case, the High Court judge said that a suspended sentence may be appropriate for cases where it involves a virtuous relationship.
    
14. In that same case, the High Court judge sentenced an elderly 60 year old to 3 years imprisonment with a non-parole period of 2 years for having a sexual relationship with a 15 year old.
    
15. Your counsel accepts that the tariff for defilement can be between a suspended sentence to up to 4 years imprisonment [ Etonia Rokowaqa v. State Criminal Appeal No. HAA 37 of 2004 ].
    
16. You tell me that you only spent 1 night in police custody.
    
17. The prosecution don’t dispute this and also accept that you are first offender having no previous conviction.
    
18. I can only sentence you for one incident of sexual misconduct in the month of August 2014. I have found that you had sex with her at a cassava plantation and ejaculated inside her.
    

MAXIMUM SENTENCE

19. For the defilement of a person who is between 13 years but below 16 years, this offence attracts a maximum sentence of 10 years imprisonment.
    

SENTENCING RANGE or SENTENCING TARIFF

20. The sentencing tariff for this type of offence is between a suspended sentence for virtuous relationships to 4 years imprisonment [ see for example Naiwau v State [ 2018 ] FJHC 193; HAA01.2018 ( 16 March 2018 ) ].
    

Starting Point

21. The circumstance of the case persuades me to select a starting point of 1 year 6 months imprisonment.
    

Aggravating Factor

22. Although the age difference here was not substantial, there was still a marked aged difference of about 3 years.
    
23. You are related. The victim said that she is your cousin sister. You also told me that you treat her so.
    
24. You breached that trust. You are older of the two of you and you should have known better.
    
25. I have found and accepted that you impregnated her and that you are the father.
    
26. I observed you when your counsel questioned the victim or PW1 in the witness box about your daughters and your denial that they were yours. You looked away when the victim or the mother of your children was confronted about this.
    
27. Your counsel cannot be faulted for putting this lie to the victim as this was obviously your instruction to your counsel.
    
28. As I said in the judgment, the victim when giving evidence was impressive. I believe her that you are the father. When she responded saying that you are the father, she looked at you in desperation from the witness box as if to ask why you were doing this.
    
29. Looking away or your shame was a clear betrayal of your conscience. You know that these are your children.
    
30. We cannot put a value on the physical and emotional strain on the young soon to be mother ( in this case, the victim ) going through pregnancy for the first time. If you stuck around and held her hand and supported her during her pregnancy, may be you will realize this difficult process.
    
31. When it came to standing up and being a man and taking responsibility, your denial that you are the father was as if you had spat on the face of your children and the mother of your children.
    
32. Your denial is a betrayal of your family and an insult to the victim.
    
33. Although the pregnancy and delivery was normal, pregnancy is still a life threatening situation. By impregnating her, you put the lives of your daughters and that of the victim on the line.
    
34. Furthermore, the victim had to drop out of school because you impregnated her. She is now trying to get her life on track and has successfully and admirably recently graduated studying hospitality.
    
35. Your sentence is increased by 1 year 6 months because of all these.
    
36. Your interim sentence stands at 3 years imprisonment.
    

Mitigating Factors

37. At first glance, it sounds like your case is one of a virtuous relationship. Especially as you were 18 at the time and she was 15 years old and you approached her for a consenting relationship which she approved.
    
38. Your denial during the trial that you are the father and in attempting to distance yourself from the victim or the mother of the children tells me differently.
    
39. If this was a virtuous relationship or if it was genuine or if you cared about her, you would not have denied being the father.
    
40. There is also no evidence before me that you were there when she was pregnant or when she gave birth or that you maintained a consistent presence by her side.
    
41. I cannot accept therefore that you wanted a genuine relationship with her or I reject the idea that this was a virtuous relationship.
    
42. It is apparent that your daughters and the victim are being mostly cared for by the victim’s family. Your assistance to them is negligible. As you told me, you only supply fish because you are related.
    
43. I cannot accept that you help your immediate family as mitigation.
    
44. You will receive some discount though for your past good history.
    
45. You have cooperated with police.
    
46. You were young when you committed this offence and you still are young.
    
47. This charge has been looming over you the past 3 years.
    
48. Although time in remand or police custody is not a mitigating factor, I will consider it here as it is not too exorbitant and was only 1 night.
    
49. For the above, I reduce your sentence by 1 year.
    
50. Your current sentence now stands at 2 years imprisonment.
    

DISCRETION

51. I can suspend your sentence whether in whole or in part pursuant to section 26 ( 1 ) and ( 2 ) ( b ) of the Sentencing and Penalties Act 2009 if your sentence is below 2 years imprisonment.
    
52. I am also mindful of section 4 of the Sentencing and Penalties Act 2009 when considering your sentence in this case.
    
53. I place emphasis on the community’s denunciation of this type of offending and the need for deterrence when sentencing you.
    
54. I will therefore suspend your sentence but only in part.
    
55. You will serve 6 months imprisonment and the remaining 1 year 6 months will be held in suspense for the next 2 years.
    
56. I will not order or impose any domestic violence restraining order on you as the victim is now an adult and is capable of making decisions for herself and the children and I find no evidence of violence, threat, intimidation or harassment complained against you.
    

SUMMARY

57. Your final sentence is 2 years imprisonment.
    
58. From that sentence, you will serve 6 months imprisonment immediately.
    
59. The remaining 1 year 6 months will be held in waiting or suspended for the next 2 years.
    
60. Commit any other offence in the next 2 years and this 1 year 6 months imprisonment held in waiting maybe activated.
    

[ Suspended term explained to the defendant ]

61. I will not impose any DVRO for the reasons explained earlier.
    

28 days to appeal.

....................................................
Lisiate T.V. Fotofili
Resident Magistrate

Dated at TAVUA this 17^th day of August, 2018.