R. v. AMIRI s/o ALI (1969) HCD 41

Defilement – Mitigating factors in sentencing – Youth of the parties – Strong temptation. 

R.v. AMIRI s/o ALI (1969) HCD 41

Crim. Rev. 3-D-69, 10/1/69, Biron J.

The accused was convicted on his two years and to six strokes corporal punishment. The accused, who was sleeping in the same room as the complainant, in the middle of the night went to her bed, and without even awakening her, undressed her and had sexual intercourse with her, not only without her consent but without her knowledge. She however awakened, raised the alarm, and the accused was apprehended on the spot.

Held: “I fully agree with the learned magistrate that the offence is serious, although unfortunately rather prevalent, and must be discouraged and stamped out. Even so, every case must be considered in its own particular context and surrounding circumstances …. There are in this instant case strong mitigating factor ….. First there is the age of the two parties. The magistrate will recall that when the girl was first examined the doctor found her to be under fourteen years he then very properly had her again medically examined and …. The doctor found her to be under twelve years of age. Likewise, in the case of the accused, after a thorough medical examination, he was found to be over seventeen …… Thus the accused is just above the age of a juvenile, whilst the complainant is just below the age of consent. But the strongest mitigating factor is that this case differs from the usual run of such offences, where the offender entices a little girl into the bush, or rapes a little girl whilst her parents are away. In this case the accused had temptation thrust upon him, in that, sleeping together in the same room; he was doubtless affected by the proximity and tempted by the sight and presence of the sleeping girl so near him. In those circumstances… a short sharp lesson to teach the accused self-control would serve a much more useful purpose than sending him to prison for a long spell, where he would be exposed to the dangers of contracts with hardened criminals and probably come out a much worse citizen than when he went in ….. the sentence of imprisonment imposed is accordingly reduced to such term as will result in the immediate discharge of the accused, and the corporal punishment awarded is increased to ten strokes”.