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State v Makin [J] [2022] FJHC 188; HAC089.2020 (5 April 2022)

IN THE HIGH COURT OF FIJI

AT LABASA

[CRIMINAL JURISDICTION]

CRIMINAL CASE NO. HAC 89 OF 2020

BETWEEN : STATE

AND : OBETA MAPHIL MAKIN [J]

Counsel : Ms M Lomaloma for the State

Mr J Lanyon for the Juvenile

Date of Hearing : 31 March 2022

Date of Punishment : 05 April 2022

PUNISHMENT

[1] Between March and April 2020, the juvenile had consensual sexual intercourse with a girl under the age of 13 years on two separate occasions. The incidents occurred on Rabi Island. At the time, the juvenile was 17 years old and the complainant was 12 years old. Both were in a boyfriend and girlfriend relationship. When the complainant’s school teachers came to know about the incidents they reported the matter to police.

[2] The juvenile was arrested and charged with two counts of rape because the complainant was under the age of 13 years and was incapable of giving consent to sexual intercourse. He admitted having sexual intercourse with the complainant when she was under the age of 13 years.

[3] After the matter was transferred to the High Court, the juvenile pleaded guilty to the charges. He is now 19 years old but when he committed the offence he was under the age of 18 years and was a juvenile. Juvenile offenders are punished under a different sentencing regime. In State v Vualiku [2018] FJHC 615; HAC063.2018 (20 July 2018) the Court said at para [2]:

Consistent with the objectives of the Convention on the Rights of the Child and the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (‘The Beijing Rules’), the Juveniles Act provides focispecial measures to deal with juvenile within the criminal justice system. It is now well recognized that children who are accused of committing offences are not be treated in the same manner as the adults in the criminal justice system.

[4] Article 40 of the Convention on the Rights of the Child states:

States parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child’s sense of dignity and worth, which reinforces the child’s respect for the human rights and fundamental freedoms of others and which takes into account the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.

[5] Rule 5 of the Beijing Rules state:

The juvenile justice system shall emphasize the well-being of the juvenile and shall ensure that any reaction to juvenile offenders shall always be in proportion to the circumstances of both the offenders and the offence.

[6] These principles are reflected in the objectives of the Juveniles Act. Special measures provided by the Act are as follows:

• Designation of a magistrate’s court to sit in a separate facility

to hear juvenile case (section 16).

• Proceedings are in camera (section 17).
• Juveniles are accorded due process rights (section 20).
• Identities of juveniles are suppressed from publication in the

media (section 12).

• The use of the words ‘conviction’ and ‘sentence’ in reference

to juveniles are prohibited (section 20).

• If a juvenile is found delinquent then a range of non-

custodial options are available to deal with the delinquent behavior (section 32).

• Detention is reserved as a matter of last resort and for

specified grave offences (section 31). Detention has to be less than 2 years (section 30 (3)).

• Special facility is provided for the detention of juveniles away

from adult offenders (section 35).

[7] In State v NT [2003] FJHC 339; HA001.2003S (31 July 2003) the Court said that a juvenile has better prospects of rehabilitation than an adult and long terms of imprisonment should therefore be avoided.

[8] The only aggravating factor in this case is that the complainant is also a child. She may have consented to sex but the law considers that consent as invalid.

[9] The mitigating factors are that the juvenile has expressed genuine remorse by pleading guilty early. He has previous good character and has saved court’s time and resources. He spent 3 months in custody before he was granted bail.

[10] After taking all these matters into account, I impose an aggregate detention of 2 years suspended for 5 years.

. ...........................................

Hon. Mr Justice Daniel Goundar

Solicitors:

Office of the Director of Public Prosecutions for the State

Lanyon Lawyers, Barristers & Solicitors for the Juvenile