IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION
Criminal Appeal No. HAA 16 of 2014

BETWEEN:

NIRAJ KIRAN PRASAD
Appellant

AND:

STATE
Respondent

BEFORE: HON. MR. JUSTICE PAUL MADIGAN

Counsel: Mr. S. Nath for the State
Mr. S. Singh for the Appellant

Date of hearing: 14 August 2014 & 26 September 2014
Date of Judgment: 4 November 2014

JUDGMENT

1.	On the 12th May 2014 in the Magistrates Court at Suva, after trial, the appellant was convicted on one charge of defilement of a child under the age of 13 years. He was sentenced on the 28th May 2014 to a term of imprisonment of 5 years.

2.	The appeal is against both conviction and sentence.

3.	The facts of the case as alleged by the State are that the complainant went to the Hibiscus festival on the evening of 21st August 2010. She did not go home but instead rode around in a bus with a particular checker (the appellant) until 2am until he finished his shift. She asked if she could "go with him" and they both then went by taxi to the Urban Nest motel where the complainant says they undressed and had sexual intercourse. She says that she was having her menses, felt "unclean" and pushed him away but he persevered and penetrated her for 20 minutes or so. They spent the night together. The next day she says she told some church members and they took her home to tellher family. The State produced the complainant's birth certificate which shows that at the relevant time she was 12 years old.

4.	The appellant/accused gave evidence to say that on the 21st August he was working as a bus checker when he met the complainant in his bus. She continued to ride the bus and she told him she wanted to go with him or spend the night with him. They went by taxi to the Urban Nest Motel where he paid for a room. He wanted to have sex but she was having her menses so he just hugged her and went to sleep. They did not have intercourse. He said she was tall, big-chested with wide shoulders. He thought that she was 19 years old. They went their own way the next morning.

5.	The grounds of appeal against conviction are:

(i)	The Magistrate erred in finding that the prosecution had proved its case beyond reasonable doubt.

(ii)	The Magistrate erred in fact in accepting the complainant's evidence that there was sexual intercourse between her and the accused on 21 August 2010.

(iii)	The Magistrate erred in law and in fact in failing to consider or analyse the evidence of the accused that he did not have sexual intercourse with the complainant given that she was having her menses at the time.

(iv)	The Magistrate erred in law and fact in not drawing any adverse inferences from the inconsistencies in the evidence of the complainant.

(v)	The Magistrate erred in law and fact in not accepting the accused's evidence that he did not know that the complainant was below the age of 13 at the time.

6.	In his appeal against sentence the appellant prays that 5 years is harsh and excessive and the Magistrate failed to consider the medical report in his sentencing.

7.	In his detailed submissions on the first ground of appeal (that is that the case against his client had not been proved beyond reasonable doubt), the reasons he gives are:

(i)	the complainant was having her menses.

(ii)	the accused said that there was no intercourse because of the menses.

(iii)	the complainant had sexual intercourse with one Ronil on the same day.

(iv)	the medical report was compiled 2 days after the date of the alleged defilement.

(v)	the complainant said nothing to the Police about her menses.

(vi)	the accused said at trial that she was 19.

(vii)	the complainant looked like a 19 year old according to the accused.

8.	By giving these reasons, counsel for the appellant has stated at least five matters which are irrelevant ((i) – (v)) to the crime and 2 ((vi) and (vii)) which are contrary to law. It is not for an appeal to rehear the facts of a case and what the accused thought of the age of the girl does not matter. The offence is one of strict liability. There is no room for what the accused thinks as there is for defilement of a girl between the ages of 13 and 16.

9.	The Magistrate reviewed both the prosecution evidence and defence evidence and carefully analysed it in a most judicial manner. He found that the discrepancies between her statement to the Police and her evidence in Court to be "minor" and they did not in his mind operate to affect the credibility of the young girl.

10.	In his second and third grounds of appeal counsel for the appellant objects to the date of the alleged defilement which he says can only have happened on the 29th August 2010 and not the 21st August 2010. Counsel however unfortunately over-looks the incontrovertible position that it was an agreed fact between the parties that the "incident" took place on the 21st August 2010. His ground that the girl cannot be believed because it happened on 29th August is groundless.

11.	The fact that the victim was having her menses does not mean that sexual intercourse was not possible. While it might be "frowned upon" or even forbidden in certain cultures and traditions, the fact is that sexual intercourse at such a time is still physically possible. The appellant's grounds of appeal in that respect have no merit.

12.	In a charge of defilement, there is no room for the perception of age by the defiler to be taken into account. What he thought, or what he claims to have not known is totally irrelevant. The crime is proved by proof of sexual intercourse and proof that the girl was below the age of 13. The fact is that the Magistrate was unfortunately mistaken in this regard by making "knowing the complainant to be under 13" an element of the offence. That point is not in the appellant's favour. The Magistrate has corrected himself by the time he came to enter judgment in the case on the 12th May 2014.In that judgment he found the complainant to be credible, and finding that there was an act of sex and that she was under the age of 13.

The reasons for the finding of guilt and the conviction are given after a proper analysis of the evidence.

13.	The appeal against conviction is dismissed.

Sentence

14.	In his grounds for appeal, the counsel for the appellant in submitting that 5 years imposed was harsh and excessive prays that the learned Magistrate did not consider the medical report of the complainant on sentencing. However in his written and oral submissions he does not refer to this point, nor can it be seen how the report would assist him. The hymen was not intact (which does not prove anything either way) and there were no signs of violence or injury.

15.	This certainly was not a "virtuous friendship" of boyfriend and girlfriend, which could lead to a suspended sentence, but more in the nature of a young man taking advantage of a girl offering herself to him. The maximum penalty for the offence is life imprisonment which shows the legislature's concern for very young girls in setting down such a high maximum to protect them from predatory males and from themselves.

16.	In John Peter Vunilagi (HAA 75 & 76 of 2004), Shameem J. said:

"In respect of defilement of girls under the age of 13, ………..there can be only exceptional circumstances which could justify a term of imprisonment less than 3 years".

She also said in the same case:

"A wide range of sentences can be expected but where the victim was not far short of her thirteenth birthday and there were no particularly adverse or favourable features, a term of 6 years would be appropriate. The younger the girl when the sexual approach was first made, the more it would be that her will was overborne and the more serious the crime".

17.	The Magistrate in passing sentence for the crime carefully considered the sentencing authorities and on the strength of them arrived at a term of 5 years imprisonment.

18.	However this Court is of the view that too much weight was given to what the lower court considers to be "aggravating features" and not enough to mitigating features. The Magistrate found it to be aggravating that there was a large age difference between the two, that he took advantage of the complainant's vulnerability and lack of remorse by denying the offence even in the mitigation stage. He found the mitigating features to be that he was young, married with a young child, sole bread winner and looking after his elderly mother.

19.	The age difference is not great. He was 21 at the time and she was 12 years and 5 months. The girl might have been vulnerable because of her tender age and in that respect the legislature demands that a girl of that age be protected from herself. It is obvious from the facts that the girl was "pressing" the accused to spend the night with her by staying on his bus until the end of his shift and asking that he take her home, and whilst he should of course have steeled himself against such temptation, a little credit should perhaps have been given to him for this temptation. It is certainly not a case of an older man using authority or abusing trust to defile a young girl.

20.	The lack of remorse that that Magistrate refers to is the accused's perception that by hearing from the girl that she was 19 and thinking she was in fact 19, he was doing no wrong. It is apparent from the written submissions on this appeal that his counsel still labours under the same misconception. The accused not being properly advised cannot be penalized for what is seen by the Magistrate to be lack of remorse. He does say in his mitigating submissions that had he known she was under 13 he would never have spent the night with her.

21.	The mitigating features of youth and clear record must take precedence over family circumstances. Family circumstances should never be given credit in a sentence unless they are particularly dire.

22.	I set aside the sentence passed below and I recast the sentence pursuant to s.256(2) of the Criminal Procedure Decree 2009. I select the same starting point of six years in accordance with the sentencing authorities referred to (supra).There are no aggravating features apart from those inherent in the crime. From the six years for his clear record and youth I deduct three years, meaning the appellant will now serve a total term of three years. I order that he serve a minimum term of two years before he is eligible to be considered for parole.

P.K. Madigan
Judge

At Suva
4 November 2014