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State v Delai [2012] FJMC 59; Criminal Case 87.2012 (24 April 2012)

IN THE RESIDENT MAGISTRATE'S COURT OF NAVUA

Criminal Case No: - 87/2012

STATE

V

TIKKO DELAI

For Prosecution : - Sgt .Lenaitasi
Accused : - In person

SENTENCE

1. You TIKKO DELAI were charged for the offence of, Indecent Assault" which is punishable under section 212(1) of the Crime Decree No 44 of 2009 and carries a maximum penalty up to 5 years of imprisonment.
   
2. You pleaded guilty for the said offence of Indecent Assault" on 22 March 2012 on your own will and accord. I am satisfied that you fully comprehended the legal effect of your plea and your plea was voluntary and free from influence. Wherefore I convict you for the said offence.
   
3. It was revealed in the Summery of fact, which you admitted in open court, that you committed this offence on 20 March 2012 at Wainibuabua settlement, Wainadoi, Navuav in the Central Division. You followed the pw1 and got hold of her from behind and fondled her breasts.
   
4. I now proceed to determine an appropriate starting point and sentence for you upon considering general principles of sentencing under Section 15 (3) of the Sentencing and Penalties Decree and objectives and purposes of sentencing under section 4 (1) and 4 (2) of the Sentencing and Penalties Decree.
   
5. Tariffs vary with the gravity and nature of these offences. In RT Penioni Rokota v State HAA 68/02S Shameem J held that "Sentence for indecent assault range from 12 months imprisonments to 4 years. The gravity of the offence would determine the starting point for the sentence."...A non custodial sentence will only be appropriate in cases where the ages of victim and the accused are similar and assault of a non penetrative and fleeting type"
   
6. Upon considering above mentioned legal precedents on Tariff for the offence of Indecent Assault I select 20 months as a starting point for your sentence.
   

Aggravating factors

7. I take following as aggravating factors in this case.
   

A .The victim is 12 years old

B You are a cousin of the victim and by committing this you breached the trust.

Mitigating factors

8. I consider following mitigating factors which were brought before me in your mitigation submission.
   
   1. 37 years old
   2. Married
   3. Seeks forgiveness
      
9. In view of aforementioned aggravating factors I increase 10 month, to reach the period of 30 months.
   
10. Since you have pleaded guilty in the first available instance you are entitled for a reduction of 1/3 of the total period of imprisonment. (Akili Vilimone v State). There by your sentence stands for 20 months.
    
11. I reduce further 6 months for other mitigating factors to reach the period of 14 months. In pursuant to section 26 (2) (b) of the Sentencing and Penalties Decree I am mindful that a sentence which is below two years could be suspended by this court.
    
12. You are a not a first offender. I noted that you got 03 previous convictions. But two were committed more than ten years ago and I would disregard them.
    
13. Also the victim in this case is 12 year old girl. The court has a duty to protect children of this country. I believe your sentence should reflect that court denounces such crimes as well as send signal to society not to commit crimes like this.
    
14. I also take in to consideration RT Penioni Rokota v State HAA 68/02S where Her Lady ship Justice shameen noted that "A non custodial sentence will only be appropriate in cases where the ages of victim and the accused are similar".
    
15. Therefore In this case I do not see any compelling reason to suspend your sentence.
16. Accordingly, I sentence you for 14 months imprisonment period for the offence of Indecent Assault contrary to section 291 of the Crime Decree No 44 of 2009.
    
17. 28 days to appeal.
    

24/04/2012

H.S.P.Somaratne
Resident Magistrate, Navua