| Fiji Islands - Wainibu v The State - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
(SUVA)
APPELLATE JURISDICTION
CRIMINAL APPEAL NO. HAA0008 OF 1995 BETWEEN:
I WAINIBU
APPELLANT
AND: p class=MsoNormal alal align=center style="text-align: center; margin-top: 1; margin-bottom: 1"> STATE
RESPONDENT
Appellant in Personp class=MsoNormal style="margin-top: 1; margin-bottom: 1"> Mr. Hook for Respondent
JUDGMENT
The appellant Nemani Wainibu was convicted after he pleaded guilty to Defilemf a girl between 13 years aars and 16 years, contrary to Section 156 (1) (a) of the Penal Code, Cap.17 at Nausori Magistrate's Court and was sentenced to 5 years imprisonment.
The particulars of the offence alleged were that between 1st day of March 1994 1st day of March 1994 at Leat Levuka appellant had
unlawful carnal knowledge of a girl namely Milikiti Dolo aged 15 years.
Appellant iealing against his sentence on the ground that it is harsh and excessive in view of the face fact that he is a first offender.
The proion evidence was that on a night between 1st of March and 31st of March,1994 the complainanainant, a 15 year old and a Form
3 student went to attend church service. On her way back home appellant grabbed her and took her behind the village shop. Appellant
made her lie down and had sexual intercourse with her. After that complainant went home without telling anyone.
On 11th of November, 1omplainant's mother suspected that the complainant was pregnant. She reported the matter toer to the police.
Complainant was taken to the doctor who examined her and found her to be 30 weeks pregnant.
Appellant is asking that his sentence of 5 years be reduced she pleaded guilty to the charge and also that he is a firstfirst offender.
In Principles of Sentencing (Second Edition by D.A.Thomapage 121 the learned author had this to say:
>
"The mosnificant sentencing considensideration in cases of unlawful intercourse with girls between 13 and 16 is the age difference
(See Taylor (1977) 64 Cr.App.R.182). Where the offender is himself only a few years older than the girl concerned the usual sentence
is a fine or conditional discharge, although an individualized measure such as probation will be considered appropriate if the general
circumstances indicate a need for training or supervision. A custodial sentence is likely to be upheld, despite the proximity of
the ages of the parties, where the appellant has deliberately flouted the law by committing the offence with full knowledge of the
circumstances and after appropriate warning. "
In this case the appellant was 22 years old and the complainant wasears old. But the circumstances and the facts surrounding ting
this case are a little serious since the complainant was grabbed by the appellant and he had sexual intercourse with her. Although
the complainant did not report the incident to anyone until after she was found to be 30 weeks pregnant, that does not take away
the fact that the law intended that girls under 16 should be protected from men and from themselves.
The State Counsel for the respondent had however conceded at the hearing of this appeal that tntence of 5 years might be t be too
harsh.
I agree with this very fair and commendable concession on the part of the State Counsel. The appe is a young man and a first offender and of course he had readily admitted his guilt. WhileWhile I do not condone this kind
of offence, it is my view that the sentence of 5 years which is the maximum for this offence is much on the higher side in view of
the mitigating factors mentioned above in favour of the appellant and a measure of mercy is in order.
I will therefore set aside the see of 5 years imposed in the court below and in substitution therefor I impose a term of 2½ f 2½ years
imprisonment.
To this extent thieal succeeds.
S W Kepa
JUDGE
9th June, 1995
Haa0008j.95s
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