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State v Mutch [1999] FJHC 149; Hac0008.1998 (15 November 1999)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL TRIAL NO. 8 OF 1998

STATE

v

MARK LAWRENCE MUTCH

Counsel: Ms. Rachel Olutimayin and Mr. D. Goundar for the State
Mr. Mehboob Raza for the Accused

SENTENCE AND SENTENCING REMARKS
OF
PATHIK J

Mark Lawrence Mutch, further to the unanimous opinions of the assessors with which I agree, I gave judgment of this Court on Thursday 11 November 1999 and convicted you in this case on two counts of rape (being first and fifth counts) and on four counts of indecent assault (being counts second, third, fourth and eighth) on defenceless children between the ages of nine (9) and thirteen (13).

The offence of rape is generally regarded as the most grave of all sexual offences and on conviction an accused is liable to imprisonment for life, with or without corporal punishment.

The sentence for indecent assault is imprisonment for five years with or without corporal punishment.

Because of your age corporal punishment cannot be ordered.

In my forty-two years in the legal field in Fiji, this is the first case of 'paedophilia' that I have come across. Perhaps it is the first in the Fiji Islands.

'Paedophilia' means 'sexual attraction to children (of either sex)'. 'The condition is usually caused by psychological and social factors, which affect the development of sexuality. Paedophiles may seek treatment because of society's disapproval: behaviour therapy can be used, or the sexual drive can be reduced by drug treatment'. (Oxford Concise Medical Dictionary 4th Ed. at p478).

This paedophilia case when it was first discovered upon this accused's arrest it sent shock waves throughout the country as it has hitherto never been heard of before here. Because of the accused's paedophilic activities parents of children involved as well the general public were taken aback which was only to be expected.

Children are the most vulnerable members of any society. It is the paramount duty of any right thinking member of our society as well as the State to protect them from such immoral, abominable, abhorrent and disgraceful behaviour on the part of a supposedly sane and educated person as the accused and other persons inclined to commit sexual offences with children.

This kind of activity should be nipped in the bud before it spreads like cancer. It is hoped that this is the first and last case to come before the Courts in this country.

To show how concerned the international community is on the rights of the child The Convention on the Rights of the Child (CRC) was adopted by the United Nations in 1989 which spells out the basic human rights to which children everywhere are entitled. Republic of Fiji has I believe ratified the CRC and is a member of the United Nations.

In the Constitution of the Republic of Fiji Islands (1998) in Art. 43(2) it is stated that "... the courts must promote the values that underlie a democratic society based on freedom and equality and must, if relevant, have regard to public international law applicable to the protection of the rights set out in this chapter." (Chapter 4, Bill of Rights).

The CRC forms part of the body of law known as public international law on human rights.

Our Penal Code does have ample provisions to deal with sexual offences committed on children. However, the courts here have not used the CRC as the basis of decision making but where appropriate it could be used to support the decision making or to justify a decision.

As I stated earlier and as stated in Art. 3(1) of CRC "in all actions concerning children, whether undertaken by ... courts of law, ... the best interest of the child shall be a primary consideration".

The CRC refers to 'state parties' being legally responsible for children. The State under local and international law comprises the 3 organs of Government i.e. the Legislature, the Judiciary and the Executive. It is interesting to note that in the High Court of Australia case of Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (128 ALR 353, 1994) the Court said to the effect that if Executive signs something it also binds the judiciary as the third arm of Government. Whether I subscribe to that view, with respect I am not in a position to state at this stage without giving more thought to that aspect.

Let the message be very clear to people like Mutch that any kind of sexual exploitation of children will not be tolerated in the Republic of the Fiji Islands for Art. 19(1) of CRC empowers:

"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 of 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." (emphasis mine)

I conclude on this aspect with Art. 34 of CRC which provides:

"States Parties undertake to protect the child from all forms of sexual exploitation and sexual abuse. For these purposes, States Parties shall in particular take all appropriate national, bilateral and multilateral measures to prevent:

(a) The inducement or coercion of a child to engage in any unlawful sexual activity:

(b) The exploitative use of children in prostitution or other unlawful sexual practices;

(c) The exploitative use of children in pornographic performances and materials."

It has been proved to this Court through sworn evidence and tested by cross-examination that you had a certain modus operandi. Through some children who were still in primary school and some you picked yourself you lured them to your home at first at Nasese and later in Padam Lala Road, Namadi Heights. While they were there you showed them around the house, made them have bath completely naked, sat in the bathroom while they were in the bath naked, touched their vagina, fondled their breasts, kissed them, sat in the bath completely naked with other children who were also fully naked when the bath is meant for just one person. Children slept with you on your waterbed, you took photos of their naked bodies in your special Kodak camera and placed the disc in your computer and showed the girls the photos you had taken of them and also played with the computer enlarging their breasts and other parts of their body. Some of the prints of these photos were produced to Court as exhibit from the computer by an Australian expert who was specially called to testify as to the images he discovered in the computer.

Mark Lawrence Mutch, your home certainly became a den of iniquity. It had been suggested that you behaved in a 'fatherly' manner towards some of these girls. This suggestion is an insult to one's intelligence judging from the things you got up to as borne out by evidence in Court.

The accused is forty-two years of age and was born in Brisbane, Australia. He is a 1986 Bachelor of Commerce Graduate from the University of Queensland. After working for the Government of Fiji from 1989 to 1993 he commenced work with the accounting firm of Coopers & Lybrand until 1996. He then joined a company called Heart Hill which went into receivership. He was married with two children.

Mr. Raza, the learned counsel for the accused, has urged me to take into account, the accused's 'suffering' since the time he was charged. He said that the accused 'has been found guilty and undoubtedly Mark will pay the price'. He said that Mark is 'absolutely a ruined person - mentally, financially and perhaps physically'. Mr. Raza said that the accused has over the years supported 'lots of local families, purchasing of school books, uniforms, fees, clothing, food etc'. and helped 'in teaching Maths, English and whatever else he could assist with their education'.

In sentencing you I take into account the fact that you have no previous convictions and all that your Counsel has said on your behalf.

Nothing has been said in mitigation that you are remorseful. Instead Mr. Raza speaking in mitigation has commented on media coverage of matters pertaining to Mutch when he said:

'Although Mark is paying the price, I urge this honourable court and the media present that if a person is charged to give him a fair go. Let him have a trial and not to reduce, what we have is like an American case that we have of O.J. Simpson, a trial by media'.

Whatever interpretation one puts on that statement, there cannot be any reduction of sentence even if you showed remorse for the offences for which you stand convicted.

Lest it be thought that because of the allegation against the media by Mr. Raza speaking in mitigation, the accused may not have had a fair trial, let me say this that in my four decades in the law, the three assessors that I had for this trial are a credit to our society. They conducted themselves remarkably well and with dignity and with a perfect understanding of their duties and responsibilities as far as this case is concerned. The accused had more than a fair trial and we are all very proud of the British system of justice that we have adopted in the Fiji Islands. No one should even dream of or attempt to cast aspersions directly or indirectly on the conduct of this trial which was conducted in the best traditions of British justice and we have no 'American system' that Mr. Raza is talking about.

For these reasons substantial sentences are appropriate for these offences.

As far as the rape counts are concerned, of a fought case, I have borne in mind the well known guideline in the case of Billam (1986) 8 Cr. App. R. (S) 48. The Fiji Court of Appeal (now called Court of Appeal) has also given certain guidelines with the starting point of seven years for rape without aggravating or mitigating features in MOHAMMED KASIM and THE STATE (Civ. App. No. 21 of 1993) in the following terms:

"While it is undoubted that the gravity of rape cases will differ widely depending on all the circumstances, we think the time has come for this Court to give a clear guidance to the Courts in Fiji generally on this matter. We consider that in any rape case without aggravating or mitigating features the starting point for sentencing an adult should be a term of imprisonment of seven years. It must be recognized by the Courts that the crime of rape has become altogether too frequent and that the sentences imposed by the Courts for that crime must more nearly reflect the understandable public outrage. We must stress, however, that the particular circumstances of a case will mean that there are cases where the proper sentence may be substantially higher or substantially lower than that starting point".

The fundamental purpose of the criminal law is to protect the community. This can be done by making the punishment fit the offence and the offender thereby promoting respect in the community for the justice of the criminal law. Hence the need for the courts to have regard to the need for general deterrence.

The offences which you have committed and for which you stand convicted are so heinous that this was your first offence or that you have not been to prison before are of little relevance as the guidelines in Kasim indicate.

Looking at the circumstances surrounding these offences and their very serious nature committed on young children leaves the Court with no alternative but to remove you from society for sometime. The Courts have to provide a real deterrence otherwise offences like rape and indecent assault, among others, on children will continue to menace the women and girls of Fiji.

I impose the following terms of imprisonment on the accused effective from today.

Count 1 7 years' imprisonment

Count 2 4 years' imprisonment concurrent with sentence in first Count

Count 3 4 years' imprisonment

Count 4 4 years' imprisonment

Count 5 7 years' imprisonment

Count 8 4 years' imprisonment

I order these sentences to run concurrently, constituting an overall term of 7 (seven) years' imprisonment.

D. Pathik
Judge

Suva
15 November 1999