Magistrates Court of Fiji

Note : Juvenile’s name is anonymised.

Sentence

Background

1. The Accused was charged with the following offences:

First Count

Statement of Offence [a]

ABDUCTION OF PERSON UNDER 18 YEARS OF AGE WITH INTENT TO HAVE CARNAL KNOWLEDGE: Contrary to Section 211(1) of the Crimes Act 2009.

Particulars of Offence [b]

EDWIN ASHWIN KUMAR on the 13^th day of September 2017 at Sigatoka in the Western Division, unlawfully took I.M an unmarried girl aged 15 years and 6 months and 28 days out of the possession and against the will of her mother namely ASENACA VIVUGA who had the lawful care of the said I.M with intent to have carnal knowledge.

Second Count

Statement of Offence [a]

DEFILEMENT OF YOUNG PERSON BETWEEN THIRTEEN AND SIXTEEN YEARS OF AGE: Contrary to Section 215(1) of the Crimes Act 2009.

Particulars of Offence [b]

EDWIN ASHWIN KUMAR on the 13^th day of September 2017 at Sigatoka in the Western Division had unlawful carnal knowledge of a girl namely I.M, aged 15 years and 6 months and 28 days old a young person being above the age of 13 years but below the age of 16 years.

Third Count

Statement of Offence [a]

ABDUCTION OF PERSON UNDER 18 YEARS OF AGE WITH INTENT TO HAVE CARNAL KNOWLEDGE: Contrary to Section 211(1) of the Crimes Act 2009.

Particulars of Offence [b]

EDWIN ASHWIN KUMAR on the 19^th day of October 2017 at Sigatoka in the Western Division, unlawfully took I.M an unmarried girl aged 15 years and 8 months and 2 days out of the possession and against the will of her mother namely ASENACA VIVUGA who had the lawful care of the said I.M with intent to have carnal knowledge.

Fourth Count

Statement of Offence [a]

DEFILEMENT OF YOUNG PERSON BETWEEN THIRTEEN AND SIXTEEN YEARS OF AGE: Contrary to Section 215(1) of the Crimes Act 2009.

Particulars of Offence [b]

EDWIN ASHWIN KUMAR on the 19^th day of October 2017 at Sigatoka in the Western Division had unlawful carnal knowledge of a girl namely I.M, aged 15 years and 8 months and 2 days old a young person being above the age of 13 years but below the age of 16 years.

Fifth Count

Statement of Offence [a]

DEFILEMENT OF YOUNG PERSON BETWEEN THIRTEEN AND SIXTEEN YEARS OF AGE: Contrary to Section 215(1) of the Crimes Act 2009.

Particulars of Offence [b]

EDWIN ASHWIN KUMAR on the 21^st day of October 2017 at Sigatoka in the Western Division had unlawful carnal knowledge of a girl namely I.M, aged 15 years and 8 months and 4 days old a young person being above the age of 13 years but below the age of 16 years.

2. The accused had pled not guilty to all the charges.
   
3. Following the trial this court had acquitted the Accused for counts 1, 2 and 5 however he was convicted on counts 3 and 4.
   
4. The brief facts for counts 3 and 4 are that the accused on 19^th October 2017 had invited the Juvenile (I.M) complainant (who was 15 years at the time) to his home to celebrate Diwali however he had not sought permission from I.M’s biological mother.
   
5. The Juvenile (I.M) went to the home of the accused wherein the accused had sexual intercourse with the Juvenile.
   
6. Prosecution did not tender any previous convictions as such the court deems the accused as a first offender.
   
7. In mitigation counsel for the accused submitted that the accused was 32 years of age, single, self-employed earning $160/week.
   
8. Further he submitted that the accused sought leniency and a second chance via a non-custodial sentence as the accused had turned a new leaf in life and was seeking to be employed on a full time basis.
   
9. The offence of ABDUCTION OF PERSON UNDER 18 YEARS OF AGE WITH INTENT TO HAVE CARNAL KNOWLEDGE has a maximum sentence of five (5) years.
   
10. The tariff was stated in State v Kartik^[1] to range from twelve (12) months to three (3) years.
    
11. The offence of DEFILEMENT has a maximum sentence of ten (10) years.
    
12. In case of State v. Pita Vetaukula (HAC 46 of 2013) Hon. Justice Goundar said:

“The maximum penalty for defilement is 10 years imprisonment. The tariff is between suspended sentences to 4 years imprisonment. (Elia Donumainasava v. State [2001] HAA 32/01S, 18 May 2001). Suspended sentences are appropriate in cases of non-exploitative relationship between persons of similar age. Custodial sentences are appropriate in cases of sexual exploitation of younger girls by old men or men who hold positions of authority over the girls.”

13. In reaching the appropriate sentence the court is mindful of Section 4(1) of the Sentencing and Penalties Act 2009 which it regurgitates herein below as follows:

“Sentencing Guidelines

4. — (1) The only purposes for which sentencing may be imposed by a court are —

(a) to punish ofrs to an extentxtent and in a manner which is just in all the circumstances;

(b) ttect the community from ofom offenders;

(c) to detfenders or other pers persons from committing offences of tme or similar nature;

(d) to establish conditions so that rehabilitationation of offenders may be promoted or facied;

e) t160;to signify the court aurt and the community denounce the commission of such offences; or

”

14. As both offences were committed under one transaction this court shall sentence the accused to an aggregate term of imprisonment pursuant to Section 17 of the Sentencing and Penalties Act 2009.
    
15. In Laisiasa Koroivuki v the State (Criminal Appeal AAU 0018 of 2010) his Lordship Justice Goundar discussed the guiding principles for determining the starting point in sentencing and observed:

"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. If the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range".

16. Considering the gravity of offending and the accused’s culpability, this Court selects two years (2) years as the starting point for the aggregate sentence.
    
17. This court adds one (1) year as aggravating feature of the aggregate sentence due to the vast age difference between the accused and the juvenile, which was more than ten (10) years.
    
18. As a result the aggregate sentence now stands at three (3) years.
    
19. The court notes mitigation presented and first offender status as highlighted under paragraphs 7 and 8 above-herein which it deducts six (6) months bringing the sentence to two (2) years six (6) months.
    
20. No further deduction is made as the accused did not plead guilty and neither did he spend time in remand custody.
    
21. As such the final aggregate sentence following deductions stands at two (2) years six (6) months.
    
22. The court does not wish to suspend any part of the sentence garnering Madigan J’s remarks in State v Kartik^[2] that “The offence exists to protect young girls from predatory men with lascivious intent”.
    
23. This case is a very good example of that.
    
24. Therefore Edwin Ashwin Kumar you are sentenced to an immediate custodial term of two (2) years six (6) months imprisonment as your aggregate sentence.
    
25. A non-parole period of two (2) years is imposed.
    
26. 28 days to appeal.
    

J.N.L SAVOU
Resident Magistrate
9^th April 2019

^[1] [2012] FJHC 840; HAA003.2012 (7 February 2012)
^[2] [2012] FJHC 840; HAA003.2012 (7 February 2012)