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State v Qaqa [2014] FJMC 29; Criminal Case 1727.2013 (11 March 2014)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA

Criminal Case No: - 1727/2013

STATE

V

LIVAI QAQA

For Prosecution : - PC Yasin

Accused : - Ms. Vulimainadave from Legal Aid

SENTENCE

1. LIVAI QAQA, you were charged in this Court for one count of Indecent Assault contrary to section 212(1) of the Crime Decree No 44 of 2009.
   
2. You pleaded guilty to the above offence on 26th February 2014. You also admitted the summary of facts tendered to the Court.
   
3. According to the summary of facts on 21st August 2013 at Wairua in the Central Division you unlawfully and Indecently assaulted the complainant by touching her breasts and kissing her.
   
4. I am satisfied that your plea was made voluntarily. Therefore I convict you for Indecent Assault.
   
5. Maximum penalty for this offence is 05 years imprisonment. In RT Penioni Rokota v State HAA 68/02S Her Ladyship Justice Shameem 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. The victim was 18 years old at that time of the offence. She came to your house to wash your clothes and you took advantage of that. These are aggravating factors.
   
7. I consider following mitigating factors which were brought before by the learned counsel from the Legal Aid.
   
   1. 58 years old
   2. Look after his sickly wife
   3. Seeking forgiveness from court
   4. First offender
      
8. Considering the facts in this case I select 16 months as my starting point and add 10 months for aggravating factors to reach 26 months. Deduct 08 months for mitigating factors to reach 18 months.
   
9. 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). Thereby your sentence stands for 12 months.
   
10. I am mindful pursuant to section 26 (2) (b) of the Sentencing and Penalties Decree I can suspend a sentence which is below two years.
    
11. Even though you are a first offender considering the nature of the crime I do not want to fully suspend your sentence. In RT Penioni Rokota v State ( supra) Justice Shameem further said that " 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".
    
12. But considering your past good behavior and other mitigating factors your sentence will be partly suspended.
    
13. Accordingly, I sentence you to 12 months imprisonment period for the offence of Indecent Assault contrary to section 291 of the Crime Decree No 44 of 2009.
    
14. From that you have to serve 03 months in correction center. Remaining 09 months will be suspended for 02 years.
    
15. If you commit any crimes during the operational period of your suspended sentence you can be charged under section 28 of the Sentencing and Penalties Decree.

28 days to appeal.

11th March 2014

H.S.P.Somaratne
Resident Magistrate, Suva