IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

Criminal Appeal No. HAA 005/2012

BETWEEN:

ASELEMO RADRODRO
Appellant

AND:

STATE
Respondent

BEFORE: Mr. Justice P. K. Madigan

COUNSEL: Appellant in Person
Mr. M. Mataiva for the State 

Date of Hearing: 17th July 2012

Date of Judgment: 26th July 2012

JUDGMENT

1.	On the 8th of February 2012, in the Magistrates Court at Savusavu the appellant entered a plea of guilty to one count of indecent assault, contrary to Section 212(1) of the Crimes Decree 2009. He was sentenced on the same day to a term of imprisonment of three years, with a minimum to be served of two years and six months.

2.	The appellant appeals that sentence on the basis that it is harsh and excessive and that the Magistrate did not take his family circumstances into account and consider alternative sentencing options.
3.	The facts agreed were that the victim of the assault was his 15 year old niece who at the time was staying at his home looking after his children. The appellant went into a room where the victim was ironing his working clothes and he touched her on her breasts and also on her vagina. The victim complained immediately to her parents and the matter was reported.

4.	The maximum penalty for indecent assault is five years and the range of sentences is between one year to four years (Penioni Rakoto HAA 68/02). The upper band of this range should be for assaults which are in breach of trust and/or on children.

5.	The appellant is 35 years old and married with 6 children. He works as a barman earning $150 per week. He expressed remorse below and before this Court. In a written submission he provides details of similar cases where the sentence has been considerably less.

6.	The Magistrate in sentencing the appellant and taking into account the gravity of the offence, the victim being a child, took a starting point of four years imprisonment. He added one year for aggravating features and deducted one year for mitigating features. He deducted one year for the plea of guilty arriving at the final sentence of three year's imprisonment.

7.	The Magistrate quite properly took a high starting point of four years considering the circumstances of the indecent assault. He fell into error however by then adding a year for the same aggravating features which led him to take a high starting point. He has punished the appellant twice for those features which is not fair. It is proper to reduce the starting point to reflect the appellant's clear record and his remorse and a meaningful deduction for the plea of guilty is also in order.

8.	The appellant's family circumstances are not relevant to mitigation of his sentence. He should have thought of his family, and in particular of his two daughters, when committing the offence.

9.	It is never helpful to look at sentences for similar offending. Each case turns on its own facts and a lesser sentence in another case does not disclose the mitigation available in that case.

10.	To recast the sentence pursuant to Section 256(2) of the Criminal Procedure Decree, this Court would take the same starting point of four years to reflect the seriousness of assaulting a child in breach of trust. Nothing should then be added to that starting point for aggravating features. To reflect his clean record and his remorse a deduction of one year should be given and then finally for his plea of guilty a further one year is to be deducted. The final sentence should be one of two years' imprisonment.

11.	The appeal succeeds to the extent that the sentence is reduced to one of two years, with a minimum term to be served of eighteen months.

Paul K. Madigan
JUDGE

At Labasa
26th July, 2012