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State v Singh [2016] FJMC 52; Criminal Case 1665.2013 (27 April 2016)

IN THE MAGISTRATES’ COURT OF FIJI
AT SUVA

Criminal Case No: - 1665/2013

STATE

V

DAVENDRA DHANUK SINGH

Counsel : Ms. Lavenia for the State
Mr.Nandan for the Accused
Date of Sentence : 27th of April 2016

SENTENCE

1. DAVENDRA DHANUK SINGH , you were convicted after a trial to one count of Indecent Assault contrary to section 212(1) of the Crimes Decree No 44 of 2009.
   
2. It was proved beyond reasonable doubt that on 07th January 2011 in MHCC you Indecently Assaulted Ms. KN (name suppressed) by touching her private part.
   
3. The maximum penalty for this offence under the Crimes Decree is 05 years imprisonment.
   
4. In Ratu Penioni Rokota v State Criminal Appeal No.HAA 0068 of 2002 her Ladyship Justice Shameem held that:
   

"Sentence for indecent assault range from 12 months imprisonments to 4 years. The gravity of the offence would determine the starting point for the sentence. A non custodial sentence will only be appropriate in cases where the ages of victim and the accused are similar and assault of a non penetrative and fleeting type"

5. In Koroivuki v. State [2013] FJCA 15; AAU 0018.2010 (5 March 2013) his Lordship Justice Suresh Chandra said:
   

"In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this stage. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff. If the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range."

6. Considering the gravity of offending I select 02 years as the starting point in this sentence.
   

Aggravating Factors

7. I consider following as aggravating factors:
   
   1. The victim is your biological daughter and you were supposed to look after her. Even though you were separated from your wife at that time you still had a duty to look after her and protect her. By committing this offence you have breached that trust.
      
   2. The victim was 03 years old at that time and there was big age difference between the parties.
      
   100. This also falls in to the category of domestic violence offence.
        
8. For these aggravating factors I add 02 years to reach 04 years imprisonment.
   

Mitigating Factors

9. In the mitigation submission filed by your previous solicitors following were submitted as mitigating factors.
   
   1. 30 years old;
   2. First offender;
   3. Working as an advisory counselor;
   4. Co-operated with the police;
   5. Looking after the financial welfare of the daughter.
      
10. You have denied this offence in your caution statement and also forced your daughter to give evidence in the Court. Therefore I do not think that you have co-operated with the police. Also there is no evidence to show that you are looking after the welfare of your daughter. Therefore I disregard these as mitigating factors.
    
11. You have called following people as character witnesses.
    
    1. Semi .S.Kuru (Provincial Administrator –Tailevu)
    2. Dabar Singh (father)
    100. Nemeli ( employee)
    4. Peter Tarusiva( Boxing coach)
    5. Raving Singh ( cousin/teacher)
       
12. These witnesses described you as a role model in the society, good employer, and caring son and asked for leniency from this Court. For these mitigating factors and for your past good behavior I deduct 01 year to reach 03 years imprisonment.
    
13. It has been said that the daughter is always a princess to her father. She would look to her father for protection even when she is grown up. But you have breached the trust and subjected her to this ordeal in her tender age. Even though I do not have victim impact report in her evidence the victim said she was having night mares after this incident.
    
14. Therefore your behavior has to be denounced in the strongest manner and also a message need to be given to the society that sexual violence against children would not be condoned by the court.
    
15. I sentenced you to 03 years imprisonment for the offence of Indecent Assault contrary to section 212(1) of the Crimes Decree with a non-parole period of 02 years.
    
16. For the safety of the victim I also grant a permanent DVRO with standard non-molestation order .
    
17. 28 days to appeal.
    

Shageeth Somaratne
Resident Magistrate