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State v Kamanalagi - Sentence [2016] FJMC 191; Criminal Case 60.2011 (6 September 2016)

IN THE MAGISTRATE'S COURT
AT TAILEVU

IN THE REPUBLIC OF FIJI ISLANDS
Criminal Case No: 60/11

State

.V.

Nemani Kamanalagi

Prosecution : Sgt Rao

Accused : Present - In Person

Sentence

___________________________________________________

Introduction

The accused is charged for sexual assault as follows:

Sexual Assault, contrary to Section 210 (1) (a) of Crimes Decree Number 44 of 2009.

Particulars of offence (b)

Nemani Kamanalagi on the 9^th day of May, 2011, at Matacaucau, Tailevu in the Central Division, unlawfully and indecently assaulted a girl L. R.H. aged 3 years, 9 months and 10 days.

The accused elected Magistrate’s Court trial. Following a hearing the Court found the accused guilty of the charge. He was convicted as per the charge by the Court.

The Law

The offence of Sexual Assault is described in section 210 of the Crimes Decree 2009 and it carries a maximum 10 years imprisonment.

"210. — (1) An person commits an indictable offence (which is triable summarily) if he or she—

(a) unlawfully and indecently assaults another person; or

(b) procures another person, without the person’s consent—

(i) to commit an act of gross indecency; or

(ii) to witness an act of gross indecency by the person or any other person.

Penalty — Imprisonment for 10 years.”

The Tariff

In State v Epeli Ratabacacaca, HAC 252 of 2011, Justice Paul Madigan set the tariff for the offence between 2 to 8 years imprisonment.

The Mitigating Factors

The accused is 65 years old, married with wife in hospital, a first offender, and seeking leniency and forgiveness.

The Sentence

Having noted the age of the victim, which is 3 years old and the nature of offending this Court will take a starting point of 24 months. For the previous good character, mitigation and time spent in custody this Court will give a discount of 6 months. For the aggravating factors which include breach of trust the court enhances the sentence by 3 months.

The Court has all that was stated for the accused person. This Court is mindful of the need to protect of young children from people like the accused. The accused being a canteen operator and a senior citizen needed to be fatherly. He acted like a beast. Those who prey on young children should be given custodial sentence.

The accused is sentenced to 19 months imprisonment. Any party aggrieved with this sentence has 30 days (from date of sentence) to appeal this sentence.

Chaitanya Lakshman
Resident Magistrate
6^th September 2016