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State v Bolatagane [2016] FJMC 55; Criminal Case 207.2014 (24 February 2016)

IN THE MAGISTRATE’S COURT AT SAVUSAVU

CRIMINAL JURISDICTION

Criminal Case No. 207 of 2014

STATE

v

INOKE BOLATAGANE

Prosecution : Sgt Rinesh

Accused : Mr Rakaria. I

Sentence : 24 February 2016

SENTENCE

1. The Accused, Inoke Bolatagane, you stand before this Court today to be sentenced for one count of Indecent Assault.
   
2. When the charge of Indecent Assault, was initially put to you on 19 May 2015, you pleaded not guilty to the charge in the presence of your Legal Aid Counsel. The case was set for hearing on 8 October 2015, and on the hearing date, before the hearing proceed the Defence Counsel informed the Court that you wish to change your plea.
   
3. The charge was re-put to you in the presence of your Legal Aid Counsel on 8 October 2015. You pleaded guilty to the charge. I find your plea to be unequivocal. You also admitted to the summary of facts when it was read in open Court on the same day. The Defence Counsel filed your written mitigation submission on 25 November 2015, which I have considered in this sentence.
   
4. The summary facts as in my own summary are that “the Accused on 17 of August 2014, the Victim and the Accused went to the main road to call the victim’s mother. The Victim called her mum and notice that the Accused was poking her ass. The Accused forcefully hugged the victim and kissed her mouth. The Accused hold the victim’s hand and place it in his private part. The Accused also touched the victim’s private part and request the victim if they could have sex. The Victim growled at the Accused and told him off. The Victim ran to their house and reveals the whole story to her cousin sister. The Victim is the niece of the Accused and they were living in the same house. At the time of the offence the Victim was 16 years old and the Accused was 45 years old.”
   
5. The maximum penalty for the offence of indecent assault is 5 years imprisonment. The tariff is 12 months to 4 years imprisonment, depending on the nature of the assault.
   
6. At the time of the offence, the Victim was 16 years old and you were 45 years old. There is an age difference of 29 years. Considering the age difference, I pick 3 years as my starting point for your sentence.
   
7. The victim is your niece and living with you in the same house. You breach the victim’s trust on you that you will protect her as her uncle, relative, and family member. You take advantage of your position in authority as the uncle of the victim to exploit, abuse, and exposed the victim for your uncalled sexual desire. All these are aggravating factors in your case and I will increase your sentence by 2 years for these aggravating factors. That will increase your sentence to 5 years.
   
8. You pleaded guilty to the charge on the hearing date. You lost your entitlement to the one third reduction. However, I will reduce your sentence by 6 months for your guilty plea. That reduces your sentence to 4 years and 6 months.
   
9. I have noted and considered the written mitigation filed by your counsel and I reduce your sentence by 18 months. That reduces your sentence to 2 years and 6 months.
   
10. Your final sentence is 2 years and 6 months. I have decided not to suspend your sentence on the need to protect the vulnerable members of the public like the Victim in this case. Immediate imprisonment term should act as a deterrent and also to send a strong message to the people who intend to commit such offence today and in the future.
    
11. Inoke Bolatagane, I now sentence you to 2 years and 6 months imprisonment with a non-parole period of 1 year from today.
    
12. I will make additional order for the Interim Domestic Violence Restraining Order issued on 28 August 2014 to be made permanent for the protection of the victim who is the protected person.
    

28 days to appeal

....................................... C. M. Tuberi RESIDENT MAGISTRATE