The Appellant’s grounds of appeal are that he was a first offender, that he had no criminal intention, that the complt had consented
to sexual iual intercourse, that he thought she was mature, and that he deserved leniency.
In the Magistrates Court, the Appellant told the learned Magistrate, in mitigation, that he was 22 yeld, worked at the Yarawa Saw
Mill, earned $72.00 a week andk and was a first offender. The facts of the case, as outlined by the prosecution, were that the complainant
was 15 years old, and a Form 3 student. She stayed with her parent at Yarawa. On the night in question, she was at home with a sister
when the Appellant knocked at the door. He and the complainant then had sexual intercourse. He then left, and his co-accused then
entered and had sexual intercourse with her. In August 2000, the complainant’s mother discovered that her daughter was pregnant.
She was told that she had had sexual intercourse with the Appellant.
The Appellant and his co-accused admitted the offence and were charged. The learned Magistin his sentencing remarks said that the
offence was seriousrious and prevalent, that the Appellant and his co-accused had stopped the education of the complainant, that
they had committed the offence in the village, and that a custodial sentence was called for. He had adjourned sentence to allow both
men to spend Christmas and New Year with their families, but sentenced them to 2 years imprisonment, after giving discount of three
years imprisonment, for the guilty pleas and good character.
At the hearing of this appeal, the Appellant expressed remorse and said he had asked the complain father for forgiveness. State Counsel
opposed the appeal, eal, saying that the sentence was right in principle, and that due weight had been given to the guilty plea and
the lack of previous convictions.
The learned Magistrate was correct in finding that the Defilement of Girls between the ages of 13 and 16 is prevalent in Fiji. Alththe
reporting rate of this this offence is not known, police statistics show an increase in reports of sexual intercourse with children.
As State Counsel correctly points out, consent of the girl is irrelevant to the commission of the offence. It is also irrelevant
to sentence. If the complainant had not consented, the Appellant would have been charged with Rape. A charge under section 156(1)(a)
of the Penal Code is specifically designed for consensual sexual intercourse with girls under the age of consent. The offence is clearly designed to
protect young girls, who have entered puberty and who are experiencing social and hormonal changes, from sexual exploitation. The
offence carries a maximum of 5 years imprisonment. Reported cases in Fiji and abroad show that sentences passed range from suspended
sentences (usually where the accused and victim are both of the same or similar age, and are in a relationship) to 3/4 years imprisonment
where the accused is in a position of trust in relation to the victim, and much older than her.
In England the maximum sentence of this offence is two yearrisonment under Sexual Offences Act 1956. In R -v- Taylor and Others 64 Cr. ACr. App. R. 182, the English Court of Appeal laid down guidelines for the sentencing of persons convicted of having unlawful
sexual intercourse with a girl under the age of 16. Lord Justice Lawton distinguished between cases of “virtuous friendship” between
young people of the same age which ended in sexual intercourse, and cases where a man in a supervisory capacity set out to seduce
a girl under sixteen. In the first type of case, custodial sentences were not needed; in the second, sentences of the maximum of
two years, or near that scale, should be imposed.
In Fiji of course the maximum sentence is 5 years imprisonmentthe learned Magistrate quite rightly commenced at 3 years imprisonment.
On the facts of this case, it would appear that a custodial sentence was inevitable. Firstly the Appellant was the complainant’s bond
(medical report of the cthe complainant), secondly the complainant is now pregnant and has dropped out of school, thirdly the Appellant
came with the 2nd accused and the result is that the complainant does not know who the father of her child his. Lastly the Appellant
is 7 years older than the complainant, and should have been trusted not to have committed the offence with his under-aged girlfriend.
The mitigating circumstances are that the Appellant pleadelty at the first opportunity, and that he is a first offender. However,
both these factors tors were taken into account by the learned Magistrate. He did not err in principle and I consider that the sentence
passed was not manifestly excessive.
For these reasons, this appeal is dismissed.
Nazhat Shameem
1"> JUDGE
At Suva
18th May 2001
Haa0032j.01s
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