Court/Judicial body: The High Court of Fiji
Date: 30 June 2000 CRC
Provisions: Article 16: Protection of privacy Article 19: Protection from abuse and neglect
Domestic provisions: Penal Code, section 175(a) (“unnatural offence”/“carnal knowledge” (i.e. sexual intercourse) with a child)
Background: A man was convicted of anal rape of a six-year-old boy and sentenced to five years’ imprisonment. He appealed against the length of his sentence on the basis that it was harsh and excessive.
Issue and resolution: Child sexual abuse. The High Court allowed the appeal and reduced the sentence from five years to four-and-a-half years.
Court reasoning: An aggravating feature in this case is that rape clearly violates the rights of children under the Convention on the Rights of the Child (CRC). However, some consideration should have been given to the offender’s guilty plea. Noting that the following factors must be considered when sentencing offenders convicted of sexual attacks on children – 1. The overall gravity of the offence; 2. The necessity for punishment of the offender; 3. The necessity to protect the public; 4. The public concern at sexual offences against children; and 5. What it was hoped would be the deterrent effect – the High Court decided that a small reduction in the sentence would be appropriate.
Excerpt citing CRC and other relevant human rights In this regard Miss Senikuraciri has quite rightly pointed out that an aggravating feature in this case is that acts of this nature clearly violate the rights of children that are enunciated in the United Nations Conventions on the Rights of the Child which Fiji had ratified in 1993. This convention was adopted by the United Nations General Assembly on 20 November 1989; the Convention came into force on 2 September 1990, in less time than any other Human Rights convention. Just how seriously the rights of the child are taken can be seen from the following Articles of the Convention: Article 16 No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation. The child has the right to the protection of the law against such interference or attacks. Article 19 1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
CRIN comments: CRIN believes this decision is partially consistent with the CRC. States should pass laws to prohibit all forms of violence against children, including sexual abuse, in accordance with Article 19. In order to be effective, these laws must be effectively enforced, which includes the imposition of sentences appropriate to the nature and gravity of the offence committed. While the High Court identified the gravity of the offence as a factor to be considered in sentencing, it is unclear from the Court’s reasoning whether this was given sufficient consideration.
Citation: FJHC 248; 1 FLR 130
Link to full judgement: http://www.paclii.org/cgi-bin/sinodisp/fj/cases/FJLawRp/2000/40.html?ste…