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State v Sawailau - Sentence [2016] FJMC 192; Criminal Case 614.2014 (6 September 2016)

IN THE MAGISTRATE'S COURT
AT NAUSORI

IN THE REPUBLIC OF FIJI ISLANDS
Criminal Case No: 614/14

State

.V.

Jotame Sawailau

Prosecution : PC Abinash

Accused : Present - Mr Kumar (Legal Aid)

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)

Jotame Sawailau on the 1^st day of November, 2014, at Naimalavau Village, Tailevu, Nausori in the Central Division, unlawfully and indecently assaulted I.R by rubbing his penis on top of the buttocks of the said I.R.

The accused elected Magistrate’s Court trial. On the date of hearing of his case he pleaded guilty. When the charges were read out and explained to the accused, he informed the Court that he understood it and then on his own free he pleaded guilty to the charge laid. The statements of facts were read out and the accused admitted the facts in Court. 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 28 years old, farmer, and a bachelor. Is a first offender, was under pornographic influence, going to church and seeking leniency and forgiveness.

The Sentence

Having noted the age of the victim, which is 6 years old and the nature of offending this Court will take a starting point of 24 months. For the guilty plea on the hearing date this court will give 4 months discount. For the previous good character, mitigation and time spent in custody this Court will give a discount of 8 months. For the aggravating factors which include breach of trust the court enhances the sentence by 3 months.

The Court has noted 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 an uncle needed to protect his nephew. He has failed to do so. Those who prey on young children should be given custodial sentence. Due to your relationship the Court will impose a DVRO to protect the victim. You are to stay 100 metres away from the victim. (The meaning, contents and the implications of breach of DVRO to be explained to accused person in open Court)

The accused is sentenced to 15 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