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State v Nacumu [2015] FJMC 23; Criminal Case 14.2013 (26 February 2015)

IN THE MAGISTRATES COURT OF FIJI
AT TAVEUNI
Criminal Case No: - 14/2013

STATE

V

PETERO NACUMU

Sgt Epeli for the prosecution
The accused in person
Date of Sentence : 26 February 2015

SENTENCE

1. PETERO NACUMU , you were charged in this Court for one count of Sexual Assault contrary to section 210(1) (a) of the Crimes Decree No.44 of 2009.
   
2. You elected this Court and pleaded guilty for the charge. You also admitted the summary of facts presented by the prosecution.
   
3. Summary of facts reveled that on 28/01/2013 while the complainant was sleeping in a room you touched her breast and licked her vagina. Also you took off her panty and rubbed your penis on her backside.
   
4. I am satisfied that your plea is unequivocal and convicts you for this offence.
   

The Law and the Tariff

5. The maximum penalty for this offence is 10 years imprisonment. Tariff is 02 to 08 years imprisonment .
   
6. In State v. Laca [2012] FJHC 1414; HAC 252.2011 (14 November 2012), his Lordship Justice Madigan referring to the United Kingdom's Legal guidelines for Sentencing categorized sexual assa160; into 3 to 3 categories.
   

Category 1 (the most serious)
Contact between the naked genitalia of the offender and naked genitalia face or mouth of the vi

Categoryegory 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. You rubbed your penis on the victim back and therefore this falls to category 02. In State v Naua - Sentence [2015] FJHC 105; HAC162.2013 Justice Madigan held that this category attracts 05 to 06 years imprisonment.

Aggravating Factors

8. The aggravating factors are age of the victim, she is your sister-in-law and therefore this is a domestic violence.
   

Mitigating factors

9. You are young offender as well as first offender. You seeks forgiveness from this court and remorseful.
   
10. After considering the facts in this case I select 05 years as my starting point and add 03 years for aggravating factors to reach 08 years. Deduct 04 years for mitigating factors to reach 04 years. For pleading guilty at the first available opportunity after the charge was amended I deduct 1/3 to reach 32 months imprisonment.
    
11. This Court has no power to suspend a sentence above 02 years. Accordingly you are sentenced to 32 months imprisonment for the offence of Sexual Assault contrary to section 210(1)(a) of the Crimes Decree. Considering your young age as well as past good behavior I would not fix a non – parole period in this case.
    
12. For the safety of the complainant I also issue a permanent domestic violence order with standard non-molestation conditions.
    
13. 28 days to appeal
    

H.S.P.Somaratne
Resident Magistrate