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State v Maqora [2016] FJMC 47; Criminal Case 91.2015 (20 April 2016)

IN THE MAGISTRATES’ COURT OF FIJI
AT TAVEUNI

Criminal Case No: - 91/2015

STATE

V

SAKIUSA MAQORA

For the Prosecution: Ms.A. Vavadaku ODPP)
For the Accused: Mr. Tuicolo(LAC)
Date of Sentence : 20th of April 2016

SENTENCE

1. SAKIUSA MAQORA, you were charged with one count of Sexual Assault contrary to section 210(1) (a) of the Crimes Decree No.44 of 2009.
   
2. You initially denied the summary of facts and therefore this was called before me on 18/04/2016 for grounds for voir-dire. But through your counsel you informed the Court that you wanted to change your plea.
   
3. Thereafter you pleaded guilty and also admitted the summary of facts which shows that you took off the panty of the victim and licked her vagina. At that time she was 03 years old and you were her grandfather. You admitted this to the police in your caution interview also.
   
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 at into 3 to 3 categories.
   

Category 1 (the most serious)

Contact between thed genitalia of the offender and naked genitalia face or mouth of the victim.

Category 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 licked the genitalia of the victim and this falls in to category 02((ii). Therefore I select 04 years as the starting point for your sentence.

Aggravating Factors

8. I consider following as aggravating factors:
   
   1. Serious Breach of Trust;
   2. The victim was 03 years old at the time of the offence;
   100. Big age difference;
   4. Domestic violence.
      
9. For these aggravating factors I add 04 years to reach 08 years imprisonment.
   

Mitigating factors

10. The learned legal aid counsel submitted following mitigating factors:
    
    1. First offender;
    2. Remorseful;
    100. Seeking forgiveness;
    4. Co-operated with the police.
       
11. For these mitigating factors I deduct 02 years to reach 06 years imprisonment.
    

Early guilty plea

12. In Naikelekevesi v The State Criminal Appeal No AAU 0061 of 2007 it was observed:
    

"...where there is a guilty plea, this should be discounted for separately from the mitigating factors in a case".

13. In UK Guilty Plea guidelines of 2007 it has been held that when an accused pleaded guilty at the first available opportunity the reduction is 1/3 and after a trial date is set 1/4 recommended. But when an accused pleaded guilty at the door of the court or after the trial has started he maybe entitle for only 1/10 discount.
    
14. In this case you co-operated with the police and pleaded guilty early after getting the legal aid. Even though later you denied summary of facts again without wasting the time and the resources you pleaded guilty saving the victim from giving evidence. Therefore giving full credit I deduct 1/3 to reach 04 years imprisonment.
    
15. With the increase number of sexual offences against the children in this country the time has come to give deterrence sentences to curb this trend and to protect the children.
    
16. Therefore SAKIUSA MAQORA, I sentenced you to 04 years imprisonment for this offence with a non-parole period of 02 years.
    
17. For the safety of the victim I also issue a permanent domestic violence order with standard non-molestation conditions.
    
18. 28 days to appeal
    

Shageeth Somaratne
Resident Magistrate