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State v Waikelia - Sentence [2017] FJHC 710; HAC223.2016 (27 September 2017)

IN THE HIGH COURT OF FIJI AT SUVA

CASE NO: HAC. 223 of 2016

[CRIMINAL JURISDICTION]

STATE

V

SANAILA WAIKELIA

Counsel : Ms. K. Semisi for State

Ms. T. Kean and Mr. S. Kumar for Accused
Hearing on : 19^th-21^st September 2017
Summing up on : 22^nd September 2017
Judgment on : 25^th September 2017
Sentence on : 27^th September 2017

(The name of the complainant is suppressed. The complainant will be referred to as “NE”.)

SENTENCE

1. Sanaila Waikelia, you stand convicted of two counts of sexual assault.
   
2. The victim is an Australian citizen who was working as a volunteer at the Pacific Harbour International School at the time you committed the offence. As you said in your evidence, the victim was a friend of yours. At the time of offence the victim was 19 years old and she had been in Fiji for about four months. You were 46 years old.
   
3. You committed the offence of sexual assault on her by kissing her on her lips without her consent and then again you committed the second offence of sexual assault by touching her genitalia by putting your hand through the shorts and the underwear she was wearing, without her consent.
   
4. The offence of sexual assault under section 210(1) of the Crimes Act carries a maximum sentence of 10 years imprisonment. The sentencing tariff for this offence is an imprisonment term between 2 to 8 years (State v Laca [2012] FJHC 1414; HAC 252 of 2011 (14 November 2012)).
   
5. The two offences you are convicted of are founded on the same facts. Therefore, in view of the provisions of section 17 of the Sentencing and Penalties Act 2009 (“Sentencing and Penalties Act”), I consider it appropriate to impose an aggregate sentence of imprisonment for the two counts. Section 17 of the Sentencing and Penalties Act reads thus;

“If an offender is convicted of more than one offence founded on the same facts, or which form a series of offences of the same or a similar character, the court may impose an aggregate sentence of imprisonment in respect of those offences that does not exceed the total effective period of imprisonment that could be imposed if the court had imposed a separate term of imprisonment for each of them.”

6. I take 4 years as the starting point of your aggregate sentence for the two offences. In selecting this starting point I have also considered the fact that you touched the naked genitalia of the victim.
   
7. The State Counsel submitted that I should consider the fact that you were a special police constable at the time you committed the two offences as an aggravating factor stating that the complainant trusted you because of that reason. However, the evidence led in the case did not clearly indicate that the victim came to the room that you were in because of her trust in you as a special police constable. As your counsel pointed out, the evidence suggests that she trusted you as a friend.
   
8. I consider the following as aggravating factors;
   1. Breach of trust as a friend;
   2. Age difference between you and the victim is 27 years; and
   100. The victim was a foreigner living in your village away from her family and you took advantage of the victim’s vulnerability.
        
9. I consider the following as your mitigating circumstances;
   1. you cooperated with the police; and
   2. you are remorseful and you ask for forgiveness.
      
10. Considering the aforementioned aggravating factors, I add 05 years to the starting point. Now your sentence is 9 years imprisonment.
    
11. I deduct 2 years of your sentence considering the above mitigating factors.
    
12. For the two counts of sexual assault, I hereby sentence you for an aggregate sentence of 07 years imprisonment. I order that you are not eligible to be released on parole until you serve 06 years of that sentence pursuant to the provisions of section 18 of the Sentencing and Penalties Act 2009.
    
13. Section 24 of the Sentencing and the Penalties Act reads thus;

“If an offender is sentenced to a term of imprisonment, any period of time during which the offender was held in custody prior to the trial of the matter or matters shall, unless a court otherwise orders, be regarded by the court as a period of imprisonment already served by the offender.”

14. I note that you have spent nearly 02 months in custody. The period you were in custody shall be regarded as a period of imprisonment already served by you. I hold that the period to be considered as served should be 02 months.
    
15. In the result, you are sentenced to 07 years imprisonment with a non-parole period of 06 years. Considering the time spent in custody, the time remaining to be served is as follows;

Head Sentence – 06 years, and 10 months

Non-parole period – 05 years, and 10 months

16. 30 days to appeal to the Court of Appeal.
    

Vinsent S. Perera
JUDGE

Solicitors for the State : Office of the Director of Public Prosecutions, Suva.
Solicitor for the Accused : Legal Aid Commission, Suva.