Home | Databases | WorldLII | Search | Feedback Magistrates Court of Fiji

State v Bigititabua [2017] FJMC 109; Criminal Case 311.2017 (8 September 2017)

IN THE MAGISTRATES’ COURT OF FIJI
AT NAUSORI

Criminal Case No: - 311/2017

STATE

V

ALIFERETI BIGITITABUA

For the Prosecution: -Sgt.Rao

For the Accused : Ms.Radole as duty solicitor(LAC)

Date of Judgment: 08^th of September 2017

Date of Sentence: 08^th of September 2017

(Name of the victim is suppressed and identified in this sentence as Ms. RN)

SENTENCE

1. ALIFERETI BIGITITABUA, you were convicted after a trial to one count of Indecently Annoying Person contrary to section 213(1)(b) of the Crimes Act No 44 of 2009(“Crimes Act”).
2. The prosecution proved beyond reasonable doubt to this court that you entered in to the room of Ms.RN and showed your penis to her. You also touched her private part. She was frighten and later informed about this incident to her aunt.
3. Maximum sentence for Indecently Annoying Person under the Crimes Act is 01 year imprisonment. Presently there is no tariff for this offence.
4. Considering the objective seriousness, I select 03 months as the starting point for this sentence.
5. The victim was 09 years old at that time. You were 33 years old and this means there is a significant age difference between the parties. You committed this offence in her bed room. I consider these as aggravating factors and add 04 months to reach 07 months imprisonment.
6. In mitigation your counsel submitted the following :
   1. 34 years old;
   2. In de facto relationship ;
   100. Seeking forgiveness.
7. In Anand Abhay Raj v State [2014] FJSC 12; CAV 003 of 2014) his Lordship Chief Justice Anthony Gates held that in Rape cases little weight can be given for personal mitigating factors of an accused.
8. In my view this applies to other sexual offences also and this also falls in to that category. Hence I disregard your personal mitigating factors. Further you have previous convictions which include a suspended sentence. You committed this offence during the operational period of that sentence. Even though your counsel submitted that you co-operated with the police your caution interview shows you denying this offence and trying to shift blame to other family members in the house. Accordingly I do not find any valid mitigating factors to give discounts in this case.
9. Section 24 of the Sentencing and Penalties Act states the remand period has to be considered as a period of imprisonment already served by an accused. In this case even though you were granted bail it appears that you failed to provide a surety as a bail condition and has to spend the time in custody. Even though technically you are on bail from that time as you are in remand due to above failure, I consider that period as remand period (03 months) and deduct that to reach 04 months imprisonment.
10. Now I have to consider whether to suspend your sentence.
11. You were invited by the mother of the victim to spend the night in her home. Whilst she was sleeping you committed this sexual offence on victim who was sleeping in her bed room. Even though this maybe a minor sexual offence, I remind myself that the children need to feel safe in their homes. Further the Article 41(1) (d) of the 2013 Constitution states Every child has the right to be protected from abuse, neglect, harmful cultural practices, any form of violence, inhumane treatment and punishment, and hazardous or exploitative labor. The State and every person holding public office must respect, protect, promote and fulfill the rights and freedoms recognized in this Chapter [Article 6(2)] and this includes the rights of children. As a judicial officer holding the public office I am also duty bound to protect these rights .Hence I find custodial sentence is warranted in this case to denounce the behavior of the accused deter these from happening in future.
12. ALIFERETI BIGITITABUA, accordingly you are sentenced to 04 months imprisonment for this charge.
13. 28 days to appeal.

Shageeth Somaratne

Resident Magistrate