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State v Nukumate [2011] FJHC 109; HAC184.2010 (4 February 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL NO: HAC 184 OF 2010

BETWEEN:

STATE
PROSECUTION

AND:

BASILIO NUKUMATE
ACCUSED

Counsel: For Complainant - Ms. Prasad, J.
For Accused - Ms. Vaniqi, S.

Date of Hearing: 1/2/2011.

Date of Judgment: 4/2/2011.

SENTENCE

The accused pleaded guilty to 1 count of criminal trespass contrary to Section 387(1) (b) of the Crimes Decree No.: 44 of 2009, and to one count of Indecent Assault contrary to Section 212 of the Crimes Decree No. 44 of 2009.

After admitting the summary of facts the accused was convicted of the said offences of criminal trespass and indecent assault.

The brief facts of this case which were admitted by the accused were, on 29/8/2010 at about 10.30am the accused entered into the complainant's house. Complainant was alone in the house lying down on the bed. She felt someone touch her from behind, and when she sat on the bed she saw accused. Accused asked her why she fought with the sister.

Before she could explain, accused pushed her back on the bed, with one hand he held her neck, and with the other hand he tried to remove her undergarment and spread her legs.

Then complainant managed to bang on the wall of her house and shouted to attract attention of the neighbours. The accused then got off her and left the house. The complainant was 21 years old at the time of the incident.

Maximum sentence for the offence of Indecent Assault is 5 years imprisonment.
Sentences for Indecent Assault range from 12 months imprisonment to 4 years (Rokota v State [2002] FJHC168; HAA 0068J. 2002S [23 August 2002] ).

Justice Shameem giving guidance on the tariff for Indecent Assault cases said in Rokota v State (Supra) case:

"..........Sentences for indecent assault ranges from 12 months imprisonment to 4 years. The gravity of the offence will determine the starting point for the sentence. The indecent assault of small children reflects on the gravity of the offence. The nature of the assault, whether it was penetrative, whether gratuitous violence was used, whether weapons or other implements were used and the length of time over which the assaults were perpetrated, all reflect on the gravity of the offence. Mitigating factors might be the previous good character of the accused, honest attempts to effect apology and reparation to the victim, and a prompt plea of guilty which saves the victim the trauma of giving evidence.

These are the general principles which affect sentencing under Section 154 of the Penal Code. Generally, the sentence will fall within the tariff, although in particularly serious cases, a five year sentence may be appropriate. A non-custodial sentence will only be appropriate in cases where the ages of the victim and the accused are similar, and the assault of a non-penetrative and fleeting type. Because of the vast differences in different types of indecent assault, it is difficult to refer to any more specific guidelines than these.

The aggravating factors in this case are:

The accused committed this offence inside the house of complainant while she was sleeping. Her own house where she lived would be the place, where the victim complainant would have felt safest.

When offending, the accused tried to remove her undergarment and tried to spread her legs. He further held her neck using violence, so that she couldn't have shouted to alarm the neighbours.

The mitigating factors are:

The accused is 25 years old, married with two young children aged 5 years and 1 year. He is the sole bread winner of the family. Accused pleaded guilty saving time of court, and specially being a sexual offence, saving the victim from the trauma of giving evidence in court.

Counsel for accused informed that accused had sought forgiveness from the complainant.

Accused is a first offender. He is remorseful and promises not to re-offend.

For the charge of Indecent Assault, considering the above circumstances I take 2 years imprisonment as starting point.

I add another 2 years imprisonment for the aggravating factors and deduct 2 years imprisonment for the mitigating factors mentioned above on behalf of the accused making a total of 2 years imprisonment.

I further deduct 8 months for his early plea of guilty and another 4 months for his previous good behavior making his final sentence to 12 months imprisonment.

Considering the facts of the case, and that this was not a case of fleeting type Indecent Assault, I find it does not warrant a non-custodial sentence.

Maximum sentence for Criminal Trespass is imprisonment for 1 year where the offence was committed in any building used as a human dwelling.

Tariff for the offence of Criminal Trespass is 1 month – 9 months (Ravuwai v State [2007] FJAC 55).

Considering the above aggravating factors and all what was said on behalf of the accused in mitigation, I sentence the accused to 3 months imprisonment for the count of Criminal Trespass.

Final Sentence
Count of Criminal Trespass – 3 months imprisonment.
Count of Indecent Assault – 1 year imprisonment.

Sentences on both counts to run concurrently.

30 days to appeal.

Priyantha Fernando
JUDGE

At Suva
4th February, 2011.