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State v Govind [2010] FJHC 221; HAA013.2010S (30 June 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO. HAA 013 OF 2010S

STATE

V

ANESH KUMAR GOVIND

Counsels: Ms. J. Segran for the State Accused in Person
Hearing: 4th June 2010
Judgment: 30th June 2010

JUDGMENT

1. On 7th January, 2010, the accused appeared in the Suva Magistrate Court, on the following charge:

Statement of Offence

INDECENT ASSAULT: contrary to section 154(1) of the Penal Code, Cap 17.

Particulars of Offence

ANESH KUMAR GOVIND s/o RAJESH KUMAR, on the 27th day of December 2009 at Suva in the Central Division unlawfully indecently assaulted a girl namely ELENI VOLAU.

2. His right to counsel was explained to him. However, he waived his right to counsel. The charge was read to him. He pleaded guilty to the offence. The prosecutor read her summary of facts to the court. Briefly, they were as follows. The complainant, was a 10 year old female student, on 27th December 2009, residing at Wailea Settlement. The accused was a 24 year old male carpenter, residing near Wailea Settlement. At about 2pm, on 27th December 2009, the female complainant went to her uncle’s house to close its doors.

3. While closing the door, the accused came from her behind, pulled her pants and panties down, and poked her vagina with his fingers. The complainant cried in pain. A neighbor heard the complainant’s cry, confronted the accused, and later reported the matter to her mother. The matter was later reported to police. An investigation was carried out. The complainant was medically examined.

4. The medical report reported the following medical findings:

"...Gaping vagina hymen damage, fresh bleeding from vaginal orifice with redness on labia minora c molcosy blood. Stain around vaginal area – dried fresh blood..."

5. The accused was later caution interviewed by the police and was later charged for the offence. The accused admitted the prosecution’s summary of facts, he was found guilty as charged and convicted accordingly. The court noted he was a 1st offender. It heard his verbal plea in mitigation.

6. Then, the court passed the following sentence:

"...According to the Medical Report there is a fresh tear in the hymen of the victim. DPP Officer assists the Court and states that the maximum sentence is 5 years for this type of offence. Accused pleads guilty. Accused has no Previous Conviction. In view of the above facts, I proceed to sentence accused for 6 months imprisonment and suspend the sentence for 18 months. Accused is informed that if he commits any offence during the period of suspension, he is at a risk of going to prison for 6 months. Apart from the above sentence, accused is ordered to pay $250 as compensation to the victim. This compensation should be paid within 3 months from today indefault 2 months imprisonment..."

7. The State appealed against the above sentence on the following grounds:

"... (a) That the learned Magistrate erred in law in suspending the sentence of 6 months imprisonment when there were no exceptional circumstances to justify a suspended sentence.

(b) That the learned Magistrate erred in law in ordering the Respondent to pay compensation to the victim when there were no exceptional circumstances to justify compensation.

(c) That the sentence was manifestly lenient taking into account all of the circumstances of the case..."

8. Appeal Ground 7(a) above:

(i) In State v Bili Vilisi, Criminal Appeal Case No. HAA 011 of 2010, High Court, Suva, the accused (57 years old), indecently assaulted an 8 years old female complainant by telling her to take off her panty, and then he massaged her thighs. The learned Resident Magistrate sentenced him to 6 months prison, suspended for 18 months. On appeal, the High Court quashed the above sentence, and substituted an immediate 12 months prison sentence, on the ground, that by virtue of section 29(3)(a) of the Penal Code, Chapter 17, a 6 months prison suspended sentence was not legally available. The point was also extensively covered in DPP v Radovu, Criminal Appeal No. 006 of 1996, High Court, Labasa.

(ii) Applying the above precedent case, to the facts of this case, this was an indecent assault by a 24 year old male on a 10 year old child. It involved the male poking the girl’s vagina with his fingers. She was injured as a result, and the details of her injuries were outlined in her medical report [see paragraph 4 hereof]. The learned Resident Magistrate sentenced the accused to 6 months prison suspended for 18 months. Following State v Bili Vilisi (supra), the above sentence is not legally available to the learned Resident Magistrate, by virtue of the effect of section 29(3)(a) of the Penal code. The State therefore succeeds on this ground.

9. Appeal Ground 7(b) and (c) above:

(i) Ground 7(b) and (c) could be considered together. This case involved an indecent assault on a 10 years old female child. The accused poked the complainant’s vagina with his fingers resulting in injuries. The maximum penalty for "indecent assault" under section 154(1) of the Penal Code, Chapter 17, is a sentence of 5 years imprisonment. The tariff is a sentence between 12 months to 4 years imprisonment: Ratu Penioni Rokota v The State, Criminal Appeal No. HAA 0068 of 2002S. I would start with a sentence of 2 years prison. The aggravating factors were this was a sexual attack on an unsuspecting 10 years old female child, her injuries as a result of the indecent assault, the humiliating nature of the attack, ie. pulling her pants and panties down and breach of neighbourly trust. I add 2 years for the above aggravating factors, making a total of 4 years prison.

(ii) For the mitigating factors, the accused pleaded guilty on first call, thus saving the court’s time. He was also a 1st offender. For the mitigating factors, I would reduce the 4 years total by 2 years, resulting in a balance of 2 years imprisonment. The State succeeds on this ground. The 6 months prison sentence suspended for 18 months and the $250 compensation order were manifestly lenient.

10. Summary

(i) The Learned Resident Magistrate’s sentence of 6 months prison, suspended for 18 months, and the $250 compensation order to the victim are quashed.

(ii) In substitution thereof, the accused is sentence to 2 years imprisonment, effective forthwith.

Salesi Temo
ACTING JUDGE

AT Suva
30th June 2010