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State v Prasad [2018] FJMC 85; Criminal Case 552 of 2012 (21 September 2018)

IN THE RESIDENT MAGISTRATES COURT IN LABASA

CRIMINAL DIVISION

Criminal Case No. 552/12

STATE –V- NARESH PRASAD

Prosecution: WPC Musuqawa

Accused: Mr. Tuicolo (LAC)

Date of Sentencing: 21 September 2018

SENTENCING

1.0 The Accused is convicted as charged for Defilement of a Young Person Between 13 and 16 years of age contrary to section 215 (1) of the Crimes Act.

2.0 The particulars of the charge as follows :

Particulars of offence

NARESH PRASAD sometimes in January 2011 at Korotolu in the Northern Division, had unlawful carnal knowledge of the S.S.P aged a young person being of or above the age of 13 years and under the age of 16 years.

You had not pleaded guilty and at trial the court found that you were guilty of the offence.

3.0 The victim is also mentally challenged and has hearing disabilities hence the court has suppressed her name for public interest purposes.

4.0 The summary of facts proven by evidence was that you had met the victim and her mother in their farm when her mother asked you to obtain pawpaw from the pawpaw patch. At the patch you grabbed her, took off her skirt and lay on top of her , and had sexual intercourse with her. She admitted that she was 15 years at the time of the offence. The medical report confirmed that the victim was already pregnant and suffered injuries on her vagina from penetration by force and the doctor confirmed that on the day of examination the victim was showing signs of distress.

5.0 The court when sentencing you will do so according to the factors considered in section 4 (1) and 4 (2) and 4 (3) of the Sentencing and Penalties Decree. In Laisiasa Koroivuki v the State [2013] FJCA 15; AAU0018.2010 (5 March 2013) his Lordship Justice Goundar discussed the guiding principles for determining the starting point in sentencing in the following manner:

"In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this time. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff.

6.0 For the offence of Defilement of a young person between 13 and 16 years of age , the maximum penalty for this offence is 10 years imprisonment. In State v Raibevu - Sentence [2012] FJHC 1040 his Lordship Justice Madigan stated:

"The maximum penalty for defilement& is ten years' irs' imprisonment; and the usual range of sentences is from a suspended sentence for protagonists in a "virtuous relationship" whilst the higher f the range is for offenders who are older and in a positiosition of trust. (Rokowaqa CA 37/2004, Kabaura HAC 117/2010). "

7.0 In State –v- Kabaura [2010] FJHC 280; HAC 117.2010 (9 August 2010) in which Goundar J stated –

‘ The maximum sentence prescribed for defilement&#1f girl betweentween 13 and 16 years of age is 10 years imprisonment. The tariff for this offence is from a suspended sentenceour years imprisonment; suspended sentences reserved for virtuous friendship offending ding while the higher side of the range is for offenders who are older and in position of trust with the victim (Etonia Rokowaqa v. State Criminal Appeal No. HAA37 of 2004); Elia Donumainasuva v. State Criminal Appeal No. HAA032 of 2001).’

8.0 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 of 13 f 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. Shameem J (as she was then) stated -

"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".

9.0 In mitigation the Accuse submits he is a widower, 52 years of age with 2 sons and looking after an elderly mother. He is willing to look after the victim and the child for which he is the biological father. One of his sons is sick and he looks after the son’s welfare.

10.0 The court finds you solely culpable for the offence. You have acted contrary to society morals and norms. Rather than being protective of a young physically challenged girl, you took advantage of her. The society is also abhorred by such behavior. There is now a growing trend for individuals to take advantage of the young and vulnerable for their own sexual desires and this sentence will send a strong signal against such conduct.

11.0 The aggravating factor is the breach of trust as the girl was a young naïve girl who suffered from physical challenges. You took advantage for your own benefit.

12.0 The court starts its sentencing at 18 months and adds 4 months for aggravating factor. The court deducts 1 year for mitigation.

13.0 Pursuant to section 26 of the Sentencing and Penalties Decree 2009 the court must consider whether to suspend your sentence or otherwise. You are a first offender, however this is an exploitive relationship and not a virtuous one. You took advantage of a young girl for your own benefit. The court will impose a term of imprisonment against you for your conduct.

NARESH PRASAD the court sentences you with conviction to 12 months imprisonment.

14.0 The court clerk will explain the implications of the sentence and if you breach thereof.

15.0 28 days to appeal.

Ms Senileba Levaci

Resident Magistrate