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State v Nakacia [2017] FJMC 110; Criminal Case 54.2016 (14 September 2017)

IN THE MAGISTRATES’ COURT OF FIJI
AT LEVUKA

Criminal Case No: - 54/2016

STATE

V
MANUELI NAKACIA

For the Prosecution: PC Shailend
For the Accused : Ms.Losana (LAC)
Date of Sentence : 14^th of September 2017

SENTENCE

1. MANUELI NAKACIA , you pleaded guilty to one count of Abduction of Person under 18 years to have carnal knowledge contrary to section 211 of the Crimes Act No 44 of 2009(“Crimes Act”).
2. You also admitted on 28^th October 2015 at Visoto Village , Ovalua you took the victim away without the consent of the guardian ( mother) to a nearby house and after lying about the name and marital status had sexual intercourse with her. Because of that she got pregnant.
3. I am satisfied about your plea and convict you for this offence.
4. The maximum penalty for Abduction of Person under 18 years of age with intent to have carnal knowledge is 05 years imprisonment.
5. In State v Kartik [2012] FJHC 840 his Lordship Justice Madigan held that tariff for this offence is from 12 months to 03 years.
6. In Laisiasa Koroivuki v the State [2013] FJCA 15; AAU0018.2010 (5 March 2013) his Lordship Justice Goundar discussed the guiding principles for determining the starting point in sentencing in the following manner:

"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 time. 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.

7. Considering the objective seriousness, I select 16 months as the starting point for this sentence.
8. The aggravating factor is using the deception to commit this offence and for that I add 06 months to reach 22 months imprisonment.
9. The learned counsel from the legal aid submitted following as mitigating factors in the mitigation submission :
   1. 25 years old;
   2. Married with small child;
   100. First offender;
   4. Seeking forgiveness and willing to reform.
      
10. 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.
11. 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. But for your past good behavior, I deduct 04 months to reach 18 months imprisonment.
12. You pleaded guilty early saving the victim from giving evidence and for that I deduct 1/3 to reach 12 months imprisonment.
13. Now I have to consider whether to suspend your sentence.
14. The purpose of this law is to protect the young girls in Fiji from men with lascivious intentions. I find you fall in to that this category of predatory men who prey on the vulnerable girls in this country. . Hiding your name and marital status, you had sexual intercourse with the victim which resulted in her getting pregnant. There is no evidence about relationship between the parties. Hence in my view the custodial sentence is warranted to denounce your behavior and protect the young girls in this country from people like you in future.
15. MANUELI NAKACIA ,Accordingly I sentenced you to 12 months imprisonment for this charge.
    16. 28 days to appeal.
        

Shageeth Somaratne

Resident Magistrate