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State v Masese [2017] FJMC 113; Criminal Case 63.2015 (22 September 2017)

IN THE MAGISTRATES COURT OF FIJI
AT NAUSORI

Criminal Case No: - 63/2015

STATE

V

MOSESE MASESE

For the Prosecution: Sgt.Rao

For the accused: Ms.Radole(LAC)

Date of Judgment : 19^th of September 2017

Date of Sentence : 22^nd of September 2017

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

SENTENCE

1. MOSESE MASESE , you were convicted after a hearing to one count of Sexual Assault contrary to section 210(1) (a) of the Crimes Act No.44 of 2009.
2. The victim, Ms.NR in this case is presently 08 years old and from Naqara Village, Naitasiri. When this incident happened in 2015 she was 06 years old and was playing when you called her to an empty house. There you removed her panty and touched her vagina twice. You also asked whether she would prepare to have sexual intercourse with you which she was not aware. Then you let the victim go and later she reported this matter to grandmother. These facts were proved during the hearing.
3. The maximum penalty for this offence under the Crimes Act is 10 years imprisonment. Tariff is 02 to 08 years imprisonment.
4. 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 assault

Category 1 (the most serious)

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(i) C(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).

5. You touched the vagina of the victim and therefore this falls to category 02. In State v Naua - Sentence [2015] FJHC 105; HAC162.2013 Justice Madigan held that this category attracts 05 to 06 years imprisonment.
6. In Laisiasa Koroivuki v the State [2013] FJCA 15; AAU0018.2010 (5 March 2013) the Court of Appeal discussed the guiding principles for determining the starting point in sentencing and observed :
"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 above judicial precedents and based on an objective seriousness of the offence, I select 05 years as the starting point for your sentence.
8. The victim was 06 years old at the time of offending. You were 62 years old putting significant age difference between the parties. You are related to the victim and she is calling you uncle. Hence by committing this offence you breached the trust of the victim. I consider these as aggravating factors and add 04 years to reach 09 years imprisonment.
9. In mitigating your counsel submitted the following:
a. You are presently 64 years old;
b. Married with 04 children;
c. You are suffering from some illnesses;

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. I find this is valid for other grave sexual offences also and find the above personal mitigating factors would not be relevant for your sentence.
11. Your counsel further asked this court not to consider against you for proceeding to trial. Even though you allowed the victim to come to court and giving evidence about this sexual incident, article 14 (2) (l) of the 2013 Constitution said the accused has right to call witnesses, present evidence and challenge evidence against him. Hence in my view you have exercised your right under the Constitution. Accordingly I agree with your counsel submission about this issue.
12. As I noted earlier your personal mitigating factors are not valid grounds to consider in this sentence. But the prosecution confirmed that you have no previous convictions and for that I deduct 01 year to reach 08 years imprisonment.
13. You were in remand for nearly 01 month and presently remanded for sentence (3 days) and pursuant to section 24 of the Sentencing and Penalties Act, I consider that as period of imprisonment you have already served. This means your finial sentence is 07 years 11 months imprisonment.
14. In Laisiasa Koroivuki v the State( supra) the Court of Appeal further held that if the final sentence falls above or below the accepted tariff , the sentencing court has to give reason for that. As mentioned earlier the tariff for this category is 05 to 06 years imprisonment. But due to serious aggravating factors present in this case and lack of mitigating factors have allowed me to give this final sentence which is above the accepted range even though in the end it is within the overall tariff.

15. I would like to conclude my sentence with the following remarks. Sexual assaults upon young children in this country by close family members must be severely punished. The perpetrators engage in these despicable conducts must serve long prison sentences, not only to punish them, but also to deter others who might have similar inclinations. Only through these kinds of harsh sentences these offences can be stopped and children can be protected.
16. MOSESE MASESE, accordingly you are sentenced to 7 years and 11 months imprisonment for this charge with a non-parole period of 05 years.

17. 28 days to appeal

Shageeth Somaratne

Resident Magistrate