IN THE MAGISTRATES’ COURT
AT NAUSORI
IN THE REPUBLIC OF FIJI ISLANDS

Criminal Case No: 352/13

State

.v.

Joseva Sailasa

Prosecution : PC Abinash (Police Prosecution)
Accused : Present – Mr R Kumar– Legal Aid

Sentence
Introduction
The accused was charged with Indecent Assault, contrary to Section 212 of the Crimes Decree 2009.  The Particulars of Alleged Offence is that:
“Joseva Sailasa on the 30th day of June 2013 at Kaba Village, Tailevu in the Central Division unlawfully and indecently assaulted J D.”
Following a hearing the accused was found guilty of indecent assault.

Maximum Sentences
The maximum sentences for Indecent Assault as per the Crimes Decree is 5 years imprisonment. 

The Tariff 
The tariff for "indecent assault" is a sentence between 1 to 4 years imprisonment. The more serious the indecent assault, the higher will be the sentence: see Ratu Penioni Rakota v The State, Criminal Appeal No. HAA 0068 of 2002S, High Court, Suva; Sikeli Nayate v The State, Criminal Appeal No. HAA 46 of 2008, High Court, Suva.
Justice Shameem giving guidance on the tariff for Indecent Assault cases stated in Rokota v State (Supra) case:
"..........Sentences for  indecent assault  ranges from 12 months imprisonment to 4 years. The gravity of the offence will determine the starting point for the sentence. The  indecent assault  of small children reflects on the gravity of the offence. The nature of the assault, whether it was penetrative, whether gratuitous violence was used, whether weapons or other implements were used and the length of time over which the assaults were perpetrated, all reflect on the gravity of the offence. Mitigating factors might be the previous good character of the accused, honest attempts to effect apology and reparation to the victim, and a prompt plea of guilty which saves the victim the trauma of giving evidence.
These are the general principles which affect sentencing under Section 154 of the Penal Code. Generally, the sentence will fall within the tariff, although in particularly serious cases, a five year sentence may be appropriate. A non-custodial sentence will only be appropriate in cases where the ages of the victim and the accused are similar, and the assault of a non-penetrative and fleeting type. Because of the vast differences in different types of  indecent assault , it is difficult to refer to any more specific guidelines than these."
Calculation of Sentence
Taking into account that the accused touched the vagina of the victim this Court takes a starting point of 18 months Imprisonment. For your mitigation this court gives you 6 months discount. This Court takes as aggravating factor the breach of trust of the victim, who was your niece and 16 years old at the time of the offending. This Court increases your sentence by 4 months.
You are sentenced to 16 months imprisonment. This Court finds that the offence you committed was calculated to take advantage of the position you all were sleeping in and easily state that you were touching your wife. When in fact she was not even there. For this reason the Court will not suspend your sentence. The Message must also go out to older and married man like you that custodial sentences will be handed down by the Courts if your prey on young children and not respect and protect them. 
You are sentenced to 16 months imprisonment. 
 
28 days to appeal.

Chaitanya Lakshman
Resident Magistrate
27th September 2016