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State v Kepa - Sentence [2024] FJMC 3; Criminal Case 596 of 2020 (5 March 2024)

IN THE MAGISTRATE’S COURT AT SIGATOKA
CRIMINAL JURISDICTION

Criminal Case No. 596/20

The State –v- Filipe Tuisawau Koronibau Kepa

For the State: PC Kamea
For the Accused: Mr. Waqavakatoga

SENTENCE

1. Filipe Tuisawau Koronibau Kepa you have pleaded guilty to two counts of Pornographic Activities Involving Juveniles contrary to section 62(A)(1)(b)(ii) of the Juveniles Act 2009.
2. The facts are that between 1^st January 2011 and 31^st December 2012 at Sigatoka in the Western Division in private, you participated in the photographing of pornographic activities involving LK and LT who were 14 and 17 years of age at the time and therefore, juveniles. While the juveniles were asleep, you took the respective photographs of the juveniles’ clothed vaginas. You kept the photographs with other photographs of others in a USB for pornographic purposes until the police discovered what was in it. You were then arrested, interviewed under caution and charged for this offence.
3. You have entered guilty plea to the charge out of your own free will and you also admit the summary of facts voluntarily therefore you are convicted as charged.
4. You have one previous conviction for a similar offence and you have offered your plea in mitigation as follows: -
   • - You are 52 years of age and currently serving an imprisonment sentence.
   • - You have pleaded guilty thereby saving Court’s time and expenses.
   • - You seek for the Court’s forgiveness as you understood what you did was wrong.
   • - You seek for a concurrent sentence.
5. The State recommends that the Court to consider the breach of trust as both juveniles are your biological daughters.
6. This offence attracts a maximum sentence of a fine of $25,000 or a term of 14 years imprisonment and for a second offence to a maximum sentence of a fine of $50.000 or a term of life imprisonment.
7. The mitigating factors include your remorsefulness and guilty plea. The aggravating factor includes the breach of trust.

8. Section 17 of the Sentencing and Penalties Act 2009 states;

“If an offender is convicted of more than one offence founded on the same facts, or which form a series of offences of the same or a similar character, the court may impose an aggregate sentence of imprisonment in respect of those offences that does not exceed the total effective period of imprisonment that could be imposed if the court had imposed a separate term of imprisonment for each of them.”

9. Given that the offences relating to both counts form a series of offences of the same character, it is appropriate to impose an aggregate sentence on you in respect of both counts.
10. I note the authority of State v Koronibau [2019] FJHC 1176; HAC 173.2015 (28 November 2019) which you Counsel has submitted and I adopt the same with the principles highlighted in that matter to arrive at a just sentence. At the moment, there is no tariff for this offence so it would be prudent to reproduce the salient parts from the said Sentence as contained below:

“There is no set tariff for this offence in Fiji, let alone any reported previous conviction or a sentence for this offence. In absence of any sentencing guidelines in respect of this particular offence it would be pertinent to review sentencing guidelines adopted in other similar jurisdictions.

Section 228B of the Queensland Criminal Code Act 1899 carries a similar offence for making child exploitation material.

“A person who makes child exploitation material commits a crime.

Maximum penalty-

(a) If the offender uses a hidden network or an anonymizing service in committing the offence – 25 years.
(b) Otherwise – 20 years imprisonment.”

However, it appears that the sentences imposed by the Australian courts across the states are too lenient compared to other jurisdictions. In R v MBM [2011] QCA 100 the original sentence of 2.5 years suspended after 8 months was considered too high in a case where a person was charged with making five home made movies of the niece showering and fondling her breasts and touching her vagina, along with other charges for possession of images of other children. He succeeded in the appeal against severity of the sentence and received 12 months imprisonment suspended after 3 months with an operational period of two years.

This court has perused a number of decisions in different states in Australia in respect of possession and making of child exploitation material. (R v Rogers [2009] QCA 10, R v Finch [2006] QCA 60, R v Hurt [2019] ACTSC 148, DPP v Latham [2009] TASSC 101, Cluett v The Queen [2019] WASCA 111, R v Turvey [2018] SASCFC 68). However, it was seen that penalties and sentencing approaches greatly differ from one state to the other in Australia.

The learned State Counsel invited this court to consider the UK Sentencing Guidelines in respect of the 4^th Count. This court places its gratitude on record for the extensive research done by the learned State Counsel which was of immense help to structure a sentence for the offence of pornographic activity involving juveniles in this case.

Section 1 of the Protection of Children Act 1978 of United Kingdom carries an offence similar to Section 62A of the Juveniles Act in Fiji. The punishment for the offence is stated in Section 6 of the Protection of Children Act of UK and it prescribes an imprisonment of ten years or a fine or both. Also, Section 160 of the Criminal Justice Act 1988 sets out an offence for possession of indecent photograph of child, where the maximum punishment is 5 years imprisonment or a fine or both.

Although the maximum punishment prescribed for the corresponding offences in Fiji is considerably higher than that of UK, it would be useful to examine the sentencing guidelines in UK for the purpose of sentencing in this case.

UK Sentencing Council has divided the offences involving indecent or pornographic material of children into three categories as follows;

Once the category of the offence is determined the UK Sentencing Council proposes the following starting points and sentencing ranges to be applied when sentencing;

Although the aforementioned guidelines are not definitive guidelines for Fiji, it would be worthwhile to be guided by this approach, as far as practical, to achieve uniformity in sentencing for this particular offence. As per the fourth count in this case you are convicted for participating in a video recording of pornographic activities involving a juvenile. In view of the above UK sentencing guidelines this offence falls within the category “A” where it prescribes a starting point of 6 years and a sentence range of 4-9 years. However, it should be borne in mind that the maximum punishment for this offence is 14 years imprisonment in Fiji, whereas it is 10 years in UK.

The courts in Fiji will have to set an appropriate tariff in time to come after carefully considering more cases, prevalence of similar offences, pattern of offending in this jurisdiction, deterrence and other important factors. In the meantime, I decide to adopt the UK sentencing guidelines to tailor an appropriate sentence in respect of the fourth count. “

11. The images do not show any penetrative or non-penetrative sexual activity. But it does show indecent images as they portray, while clothed or covered with the worn girls brief, the private part or vagina of the respective two juveniles. Therefore, you qualify into Category 3 of the said table.
    
12. Given that you admit to producing the photographs by taking the indecent images, you qualify as a producer of the indecent images. Fiji’s maximum sentence varies distinctively from the UK maximum sentence and so I will take a higher starting point. In light of the objective gravity of the offences and the harm caused to the victims, I pick a starting point of 4 years for the aggregate sentence for both counts. For the aggravating factor, I add 2 years leaving you with a balance of 6 years imprisonment. For your remorsefulness and any other mitigating factor, I deduct 1 year. From this 5 year term, I deduct a further 18 months for the guilty plea, leaving you with a balance of 3 years and 6 months imprisonment term.
    
13. Your actions are indeed disturbing and distasteful. There must a message of deterrence to the members of the public that such actions will not be condoned. Therefore, I decide not to suspend your sentence.
    
14. You are therefore sentenced to a term of 3 years and 6 months imprisonment. You are eligible for parole after 30 months imprisonment. This term is to be served concurrently to any term that you may be currently serving.
    
15. Further, I issue a permanent domestic violence restraining order with standard non-molestation conditions to ensure the safety and wellbeing of the victims in this matter.
    
16. Pursuant to Section 62A (8) of the Juveniles Act I order the Deputy Registrar to notify the Commissioner of Police forthwith, to enter the details of this conviction in the register maintained for persons convicted under Section 62A of the Juveniles Act.
    

17. 28 days to appeal.

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Joseph Daurewa
Resident Magistrate
5^th March, 2024