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State v Kele [2015] FJMC 70; Criminal Case 1642.2014 (8 July 2015)

IN THE MAGISTRATE'S COURT AT SUVA

Criminal Case No: 1642/2014

STATE

V

KUSITINO KELE

Cpl: Luke for the State
The accused represented by Ms. Lal( Legal Aid Commission)

SENTENCE

1. You, Kusitino Kele, are here, to be sentenced on admission of guilt on your own accord for the following offence namely:

DEFILEMENT OF YOUNG PERSON BETWEEN 13 AND 16 YEARS OF AGE– Contrary to Section 215 of the Crimes Decree No. 44 of 2009.

Kusitino Kele on the 7th day of September 2014 at Matata Settlement, Lami in the Central Division had unlawful carnal knowledge of Aritema Marama a young person being above the age of 13 years and under the age of 16 years.

2.I am satisfied with your plea is unequivocal and that you understand the repercussion of your plea. I am further satisfied the facts of this case present, included and proved every elements of this offence.

3. The summery of fact of this case could be reproduced as follows. On 7/9/14 at about 2.00pm at the Matata Settlement, Lami Aritema Marama PW1, 15 years, class 8 student followed her friends to have a swim in the river up in the bushes. PW1 decided to inform her uncle first, so she walked back towards the settlement when she met a neighbour Kusitino Kele Accused, 23 years, and unemployed of the same settlement who was drunk.PW1 walked past the accused who suddenly grabbed hold of her hands took her towards the bushes. PW1 struggled with the accused but to no avail. PW1 felt helpless as the accused led her forcefully into the bushes where he undressed her and make her lie down and the accused also undressed and laid on top on PW1.The accused then inserted his erected penis into PW1's vagina and also at the same time the accused made a couple of love bites on her neck. After sometime, the accused was done and he told PW1 to dress up again and go home.PW1 didn't inform anyone about it until the next morning as she was about to leave home for school, when her aunt saw that she had wrapped her neck with a piece of cloth. PW1's aunt removed the cloth and saw the love bites. PW1's aunt informed her husband. Jone Peni PW2, 53 years, about the love bites. They both questioned PW1 but she refused to say anything. PW2 informed PW1's father about the love bites and PW2 was told to report the matter to Police. The matter was reported to Lami Police Station and PW1 was referred to the Sexual Offence Unit for her statement and medical examination. Police also conducted enquiries into the matter. On 29/9/14 the accused was arrested and interviewed under caution and admitted to allegation put to him. The accused stated that PW1 consented to their sexual encounter. The accused was charged for 1 x count of Defilement of young person between 13 and 16 years of age Contrary to Section 215(1)of the Crimes Decree No. 44 of 2009.The accused is also appearing in custody at the Suva Magistrate Court on 30/9/14.

4. Maximum penalty could be imposed for the offence is 10 years imprisonment. Tariffs vary the gravity and nature of this offence. With regard to the offence of defilement Learned Justice Daniel Goundar at the case of State v Kabaura [2010] FJHC 280; HAC 117.2010 (9 August 2010) held;

"...suspended sentences are held for virtuous friendship offending while the higher side of the range is for offenders who are older and in a position of trust with the victim".

5. In Elia Donumainasuva v The State Criminal Appeal No. HAA0032 of 2001 has Honour Madame Shameem found that sentence for the defilement of girls between the ages of 13 and 16 ranges from a suspended sentence for "virtuous friendship" offending to 3 to 4 year's imprisonment where the offender is older and in a trusted position in relation to the victim. In Roligalevu v State [2012] FJHC 1092Sentencing for defilement is approached by determining whether there was a "virtuous relationship" between the offender and the victim, the age gap between the offender and the victim and any breach of trust.

6. Also in Elia Donumainasuva v the State Criminal Appeal No. HAA0032 of 2001

"The offence is cleanly designed to protect young girls who have entered puberty and experiencing social and hormonal changes, from sexual exploitation Reported cases in Fiji and abroad show that the sentences passed range from suspended sentences (usually where defendant and victim are both same or similar age, and are in a relationship 3 to 4 years imprisonment where defendant is in a position of trust in relation to victim and much older than her".

7. In State v Ali [2008] FJHC 1121; HAC235.2011 Madame Nazhat Shameem said that the purpose of the offence is to protect children "from themselves" as well as others who prey on them. A non-custodial sentence will only be appropriate where both offenders are teenagers, and where there was no degree of exploitation. Aggravating factors include any degree of violence, the length and nature of penetration and the degree of violence, the length and nature of penetration and the consequences to the victim.

8. There are no Aggravating Factors of the offence. But In Defilement as is with other sexual related offences, the issue of an early guilty plea is particularly significant because it saves the victim of the re-traumatizing effect that she will have to go through when she has to relieve those memories during examination-in-chief and cross-examination during trial. This was highlighted by Justice Gounder in the State v Kataura [2010] FJHC 280; HAC117.2010(9 August 2010) where in mitigation he stated:

"The mitigating factors are the early guilty pleas, co-operation with the Police by admitting sexual intercourse, remorse and offer of traditional apology to the complainant's family, previous good character and the old age of the accused. The guilty pleas has not only saved Court time and resources but have also relieved the complainant from giving evidence of sexual nature."

9. In mitigation; you said you are 25 years, first offender; single and lives with your mother at Qauia Settlement, Lami. Your father works in the western side of the country and your siblings are abroad. Hence you are the only immediate support your mother has on a day to day basis.you employed as a carpenter at Iris Limited earning approximately $250.00 per week. You have fully co-operated with the Police leading to the speedy progress of this case.

10. You have referred to the case of Vilimone v State [2008] FJHC 12; HAA 131-132.2007 which states:

"Because the appellant pleaded guilty at the first available opportunity his sentence should be reduced by a third..."

And Seek substantial remission for your early guilty plea. You promises that you would lead a crime free life here onwards as you learnt your lesson. You promises not to re-offend.

Further You seek leniency of the court in view of the case authority Nariva V The State [2006] FJHC 6; HAA0148J.2005S (9 February 2006) where the learned Madame Justice Nazhat Shameem stated:

"The Court must always make every effort to keep young first offenders out of prison. Prisons do not always rehabilitate the young offender. Non-custodial measures should be carefully explored first to assess whether the offender would acquire accountability and a sense of responsibility from such measures in preference to imprisonment".

11.You are asked court's forgiveness in this case. You said you had intimate relationship with the victim. She was consenting to have intercourse. You have not use force to have sex with victim. You had sex for more than 5 times as the result of the relationship. You seek the court to takes into consideration the fact that both you and the complainant were attracted to each other.

12. You added that the court to take into consideration the fact that it was indeed the complainant who had signalised to you to meet her own the hill so they could have sex. Summary of fact evident that the victim voluntarily tried to hide this relationship until her relative found it. You wish to draw to the Courts attention that the purpose of the legislation is to protect children and young people from adult sexual exploitation where children are vulnerable victims.

13.I convict the accused for the charge. I pick 3years as the starting point the offence. You pleaded guilty for the charge without going to the trial. Therefore, you are entitled for reduction of your sentence. For your early plea, I reduce 1 year of sentence. Now your sentence is 2 year.

14. I act under Section 26 of Sentencing and Penalties Decree; which states:

"(1) On sentencing an offender to a term of imprisonment a court may make an order suspending for a period specified by the court, the whole or part of the sentence, if it is satisfied that it is appropriate to do so in the circumstances.

(2) A court may only make an order suspending a sentence of imprisonment if the period of imprisonment imposed, or the aggregate period of imprisonment where the offender is sentenced in the proceeding for more than one offence-

(a) Does not exceed 3 years in the case of the High Court; or

(b) Does not exceed 2 years in the case of the Magistrates Court".

15. For the other fact of mitigation I suspend you're sentence for 3 years and if you commits and found guilty to similar offence within the suspension period this sentence will be activated irrespective of the said future sentence date.The accused is sentenced to;
Count 1: 2 year imprisonment, suspended for 2 years (subject to conditions)

16. 28 days to appeal.

On 8th July 2015at Suva, Fiji Islands

Neil Rupasinghe
Resident Magistrate