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State v Ulabale [2015] FJHC 695; HAC140.2012 (15 September 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 140 OF 2012

STATE

V

PENI ULABALE

Counsel: Ms. W. Elo with Uce for the State
Ms. S. Nasedra for the Accused

Date of Judgment: 26thAugust 2105
Date of Sentence: 15th September 2015

Sentence

1. The Accused was charge with following Counts and tried before three Assessors.

Count 1
Statement of Offence

SEXUAL ASSAULT: Contrary to Section 210 (1)(a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

PENI ULABALE on the 3rd day of October, 2012, at Tavua in the Western Division, unlawfully and indecently assaulted Litiana Regu, a 7 year old, by licking the vagina of the said Litiana Regu with his tongue.

Count 2
Statement of Offence

SEXUAL ASSAULT: Contrary to Section 210 (1)(a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

PENI ULABALE on the 3rd day of October, 2012, at Tavua in the Western Division, unlawfully and indecently assaulted Litiana Regu, a 7 year old, by kissing the buttocks of the said Litiana Regu.

2. Mr.Ulabale was originally charged with one count of Rape along with the above mentioned charges. Upon an application of the Director of Public Prosecution, Rape charge was dropped. Mr.Ulabale elected to be tried by High Court when the amended information was read outand his right of election explained.

3. Brief facts of the case are as follows:

Mr.Peni Ulabale, is the uncle of the 7 year old Victim. He came to visit the victim's family and was staying with them for some time. When the victim was alone, Mr.Ulabale called the victim to a room, closed the door and asked her to go on top of a bed. Then he took off her tights and panty, kissed her on her cheeks, kissed her on her buttocks. He turned her over and kissed her on her 'bele', meaning her private part, and licked her 'bele' with his tongue. He also pulled out his private part and wanted her to kiss it.

4. "Sexual Assault" carried a maximum sentence of 10 years imprisonment. There is no established tariff for Sexual Assault committed on children. In State v Epeli Ratabacaca Laca, HAC 252 of 2011,Justice Paul Madigan set the tariff for the offence between 2 to 8 years imprisonment, the higher tariff being set for serious sexual assaults.

5. As defined in the United Kingdom's Legal Guidelines for Sexual offences, sexual assault is any form of non-consensual touching which ranges offending from touching of the victim over clothing to non-penetrative touching of the victim's genitals.

6. With the assistance of the said Legal Guidelines for Sentencing in the United Kingdom Justice Madigan in the case of State v Epeli Ratabacaca has divided Sexual Assault offending into three (3) categories.

Category 1 (the most serious)

Contact between the naked genitalia of the offender and naked genitalia face or mouth of the victim.

Category 2

(i) Contact between the naked genitalia of the offender and another part of the victim's body;

(ii) Contact with the genitalia of the victim by the offender using part of his or her body other than the genitalia, or an object;

(iii) Contact between either the clothed genitalia of the offender and the naked genitalia of the victim; or the naked genitalia of the offender and the clothed genitalia of the victim.

Category 3

Contact between parts of the offender's body (other than the genitalia) with part of the victim's body (other than the genitalia)

7. Liking of vagina comes within Category 2(ii) and kissing of buttocks comes within category 3mentioned above.

8. It is evident that no tariff has been set for the offence of Sexual Assault when the victim is a child. In this backdrop, I turn to the Legal Guidelines for Sentencing in the United Kingdom. Section 7 of the Sexual Offences Act 2003 of the United Kingdom identifies sexual assault on children under 13 years in a special category with a penalty attracting maximum of 14 years imprisonment.

9. The Sentencing Guidelines of the United Kingdom had identified 3 "Categories" of offending based on quantum of "harm" to the victim and "Culpability factors" of the offender. It has recommended the tariff to be from "high level community Orders to 9 years imprisonment." The higher end of the range is obviously for serious offending with use of violence, abduction or detention of the victim and forced entry into victim's house. A sentence of middle range is recommended when the offending takes place with touching of genitalia, prolonged or sustained incident, additional degradation or humiliation and in a context of habitual sexual abuse. The lower range of sentencing is suggested when the "harm factors" and the "culpability factors" identified are not in existence.

10. There is no doubt that a unique set of issues and sensitivities do exist in a sexual offence when the victim is a child. State v. Yavala [2013] FJHC 333 (9 July 2013).

11. After a careful consideration of the legal background on Sentencing for the offences of Sexual Assault, I now turn to identify the aggravating and mitigating factors in this particular case. The learned State Counsel submitted a comprehensive Sentencing Submission The learned Counsel for the defence filed extremely helpful and pertinent submissions in Mitigation.

12. Aggravating factors

1. Victim being a child itself is an aggravating factor. Mr. Ulabale has exploited vulnerability of the victim to satisfy his lust.
   
2. As pointed out by the State, the age gap between the offender and the victim aggravates the background of offending. The victim was 7 years of age whilst the offender was 20 years old at the time of the offending. The age gap was 13 years.
   
3. There is domestic familial relationship between the offender and the victim. Victim, no doubt, trusted the offender and his position as her uncle. Mr. Ulabale had betrayed that trust.
   

13. Mitigating Factors

1. Mr. Ulabale is a young man just 23 years of age.
   
2. He is unmarried and resides with his parents. Both parents and his younger brother look for his support.
   
3. Mr. Ulabale has no record of previous convictions.
   
4. He has cooperated with the Police during investigations.
   

14. There is no victim impact assessment report before this Court.

Sentence

15. Having considered the degree of culpability and the circumstances existed at the time of offending, I take a starting point of 4 years imprisonment for the First Count of Sexual Assault. I add 3 years imprisonment for all the Aggravating factors mentioned earlier and deduct 3 years for all the mitigating factors. Final sentence for the First Count of 'Sexual Assault' is 4 years imprisonment.

16. I take starting point of Three years imprisonment for the Second Count of Sexual Assault. I add 3 years imprisonment for all the aggravating factors mentioned earlier and deduct 3 years for all the mitigating factors. Final sentence for the Second Count of 'Sexual Assault' is 3 years imprisonment.

17. The Counsel for the Defence asks for leniency on account of Mr. Ulabale's young age, his clear record and family commitments.

Justice Madigan has noted in State v Epeli Ratabacaca Laca(supra):

"such leniency can only be afforded to a convict who expresses remorse by way of a guilty plea or some other expression of regret."

There is none in this case.

18. This is not a fit and proper case for a court of law to be mellowed with sympathy. It is rather unfortunate to note that the respect for children in the society is on the decline and incidents of sexual molestation in familial environment are steadily growing. The alarming factor is that the younger generation, especially girls of tender years, are increasingly at a risk of sexual exploitation in domestic environment. If we are to eradicate this notion and uplift the decency and morality in public life, the administration of criminal justice system has to be strict and firm on those who violate the social norms. The sentence must reflect the public outrage against such crimes and demand for secure society for young generation. Thus, Mr. Ulabale will receive an immediate custodial sentence.

19. The sentence for the 2nd count of Sexual Assault is ordered to be served concurrently with the sentence for the 1st Count. Thus, Mr. Ulabale is sentenced for4 years' imprisonment.

20. Having considered the Domestic nature of the relationship between the victim and the offender, I order a permanent Domestic Violence Restraining Order (DVRO) in place, identifying the victim as the protected person. Mr. Ulabale is hereby ordered not to have any sort of a contact with the victim directly or by any other means, unless otherwise directed by this court.

21. Having considered Mr. Ulabale's youth, his desire for rehabilitation and his clean record I do not fix a non- parole period.

22. You have 30 days to Appeal to the Fiji Court of Appeal.

Aruna Aluthge
Judge

At Lautoka
15th September 2015

Counsels:

- Office of the Director of Public Prosecution for State
- Office of the Legal Aid Commission for Accused