Home | Databases | WorldLII | Search | Feedback High Court of Fiji

Makutu v The State [1993] FJHC 47; Haa0026.93s (1 June 1993)

IN THE HIGH COURT OF FIJI
(AT SUVA)
Appellate Jurisdiction

CRIMINAL APPEAL NO. 26 OF 1993

Between

RAVUAMA MAKUTU
Appellant

and

THE STATE
Respondent

Revisional Jurisdiction
Revision No. 3 of 1993

Between:

THE DIRECTOR OF PUBLIC PROSECUTIONS
Applicant

and

RAVUAMA MAKUTU
Respondent

J. Semisi for the Appellant/Respondent
N. Shameem for the Respondent/Applicant

JUDGMENT

The two matters before me are an appeal against sentence and an application for the Review by this Court of a grant of bail made in favour of the Appellant after Sentence was passed. I will deal with the two matters in turn.

On 16 February 1993 the Appellant was convicted on his own plea of defilement of a girl aged 13 years 10 months contrary to Section 156(1) of the Penal Code (Cap. 17). He was sentenced to 18 months immediate imprisonment.

The grounds of appeal can be simply put. Mr Semisi submits that this was a case on consensual intercourse between teenagers. Whether or not the girl was a virgin before the event complained of is not known. What however is known is that the Accused was a 17 year old 6^th Form Student at Queen Victoria School with no previous convictions. He appears to have fully cooperated with the police and, as has been mentioned already, pleaded guilty.

Mr. Semisi points out that while the Accused did not advance any of these mitigatory factors before the Magistrate (V.D. Nadakuitavuki Esq.) the Magistrate did not refer to any of these factors either when passing sentence. All he said was:-

"This is a serious offence. The Accused was involved with a young innocent girl. Accused is sentenced to 18 months imprisonment".

Mr. Semisi says that the sentence was manifesting excessive and that if a sentence of imprisonment was warranted at all then it should have been suspended.

In answer Miss Shameem cited a number of decisions of this Court upholding substantial sentences of imprisonment for this offence. She relied in particular on Neori Turaga v. The State (Suva Criminal Appeal 43/92). If anything, Miss Shameem says, the sentence was lenient. While conceding that in principle the Courts try to keep young persons out of prison she submits that when the offence is sufficiently serious there no alternative to imprisonment. She further submits that this is such a case:- the girl was young and suffered injuries to her private parts.

In Reply Mr. Semisi relies on the distinction between cases of defilement involving the exploitation of young girls by mature men and the present case which involves consenting teenagers.

With great respect to the learned Magistrate I am of the opinion that the manner in which this plea of guilty was handled fell far short of what should be expected in a Magistrate Court. The presentation of facts by the prosecution was grossly deficient. The prosecutor managed to omit such vital details as the age of the girl, the age of the Accused, his occupation and his attitude when confronted with the offence. The medical report was not tendered.

The Magistrate did not call for any of these defects to be remedied. He did not make any attempt to discover what mitigation the Accused was in a position to offer. He sentenced on the bare facts presented to him. That was quite wrong.

So long as accused persons, particularly young first offenders, appear in Fiji Courts unrepresented a Magistrate has a plain duty to assist the accused by drawing out all factors which properly should advanced in mitigation. It is not enough simply to record "nothing to say" from a young and terrified accused making his first appearance in Court and leave it at that.

I am also satisfied that the Sentence passed was wholly inappropriate. In Neori Tugara's case the accused was a mature man, a turaga-ni-koro, who abused his trust to take advantage of his victim who was probably in no position to refuse his advances. Such behaviour clearly attracts a substantial term of imprisonment. But where as in this case all that is involved is mutual affection between adolescents then, in the words of the learned author of Thomas: Principles of Sentencing:-

"The offence is normally considered not to be particularly serious and the Court generally considers that a modest fine or discharge is appropriate". (Thomas 1^st Edition p. 113)

and

"When youths of this age commit indecent assaults in such circumstances . . . it is seldom that . . . . . . a custodial sentence is appropriate" (Thomas 2^nd Edn p. 127 and see R v. Green [1971] Crim L.R. 299).

No doubt this intelligent young Accused now fully realises the error of his ways. He has a bright future ahead of him. I can see no sense whatever in ruining his life because of what he has done.

The appeal against Sentence is allowed. The Sentence is set aside. In substitution there will be Sentence of 7 months imprisonment which will be suspended for 12 months from today.

I now turn to the Review.

Miss Shameem with the skill, eloquence and learning which are her hallmarks submitted than when, having passed sentence, the learned Magistrate then released the Accused on bail pending Appeal he totally ignored the well established law concerning bail pending appeal most recently expounded once again by Fatiaki J in Sefanaia Marau v. The State (Suva Criminal Appeal 79/1990).

In Answer, Mr. Semisi pointed out that Section 315 of the Criminal Procedure Code (Cap. 21) undoubtedly gives a Magistrate the power to grant bail pending appeal. Mr Semisi is right; it does. But a Magistrate exercising his discretion to grant bail pending appeal must exercise that discretion judicially and in this case it is clear that the Magistrate did not do so. The principles governing bail pending appeal are fully explained in Chamberlain v. R [No 1] [1983] HCA 13; 1982, 153 CLR 514, 519 and Robinson v. R. [1991] 65 ALJR 519. They were not followed in this case. A Magistrate exercising his discretion must give his reasons:- it is not only Judgment following trials which must comply with Sections 155(1) of the C.P.C.

The Review sought by the DPP is now academic since the Accused has in fact been on bail pending the Appeal which has been disposed of but the point raised is an important one and on it I rule in the DPP's favour.

M D. Scott
Judge

1 June, 1993

HAA0026.93S