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State v Talavutu - Sentence [2016] FJMC 211; Criminal Case 94.2015 (5 October 2016)

IN THE MAGISTRATES’ COURT

AT LEVUKA

IN THE REPUBLIC OF FIJI ISLANDS

Criminal Case No: 94/15

State

.v.

Paulo Talavutu

Prosecution : PC Abinash (Police Prosecution)
Accused : Present – In Person

Sentence

Introduction

The accused was charged with 2 counts of Indecent Assault, contrary to Section 212 (1) of the Crimes Decree 2009. Following a hearing the Court found the accused guilty of the charges. This is his sentence

Count One

The Particulars of Alleged Offence is that:

“Paulo Talavutu on the 25^th day of May 2015 at Lovoni Village, Ovalau in the Eastern Division unlawfully and indecently assaulted M S by fondling her breast nipples.”

Count Two

The Particulars of Alleged Offence is that:

“Paulo Talavutu on the 27^th day of May 2015 at Lovoni Village, Ovalau in the Eastern Division unlawfully and indecently assaulted M S by caressing her breast.”

Mitigation

Your mitigation has been considered by the Court. Your mitigation is that you are 54 years old, married with 2 children, a Teacher, a first offender and sorry if offended the girl and her parents.

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."

Starting Point, Mitigation, Aggravating factor

For each of the Counts this Court takes a starting Point of 15 months Imprisonment. For your mitigation this court gives you 8 months discount. This Court takes as aggravating factor the breach of trust of the victim, who was your school student and trusted you as a Teacher. This Court increases your sentence by 2 months.

You are sentenced to 9 months imprisonment for each count. This Court finds that the offence you committed is predatory. You did not respect the child who was your student. The Court notes that you will lose out a lot with this conviction and you might even lose your teaching position and for that reason this court will not punish you any further and suspend your sentence.

You are sentenced to 9 months imprisonment for each count which is suspended for 18 months. The sentences are to be served concurrently.

28 days to appeal.

Summary of Sentence:

Count 1 – 9 months imprisonment –

Count 2- 9 months imprisonment - Concurrent to count 1

Both suspended for 18 months. The meaning of suspended term is explained in open Court.

Chaitanya Lakshman

Resident Magistrate

5^th October 2016