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State v Dakuna - Sentence [2017] FJMC 130; Criminal Case 119.2017 (23 October 2017)

IN THE MAGISTRATES’ COURT OF FIJI

AT TAVEUNI

Criminal Case No: - 119/2017

STATE

V

TEVITA DAKUNA

For the Prosecution : - Cpl Chandra

The Accused : - In person

Date of Sentence : 23^rd of October 2017

SENTENCE

1. TEVITA DAKUNA , you were charged with one count of Indecent Assault contrary to section 212(1) of the Crimes Act No 44 of 2009(“Crimes Act”).
2. You pleaded guilty this morning and also admitted the summary of facts presented by the prosecution.
3. According to the facts the victim is your cousin sister and 14 years old at the time of offending. On 10/09/2017 you called her and asked to rub grass to your eyes to remove itchiness. Whilst she was doing that you put your hands inside her dress and rubbed her vagina from on top her panty. She was not consenting for your behavior and reported the matter to one of her aunt.
4. I am satisfied that you plea was voluntarily and unequivocal. Accordingly I convict you for this charge.
5. The maximum penalty for Indecent Assault under the Crimes Act is 05 years imprisonment.
6. The tariff was discussed in RT Penioni Rokota v State HAA 68/02S where her Ladyship Justice Shameem held :

"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"

7. In Laisiasa Koroivuki v the State ( Criminal Appeal AAU 0018 of 2010) his Lordship Justice Goundar 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. 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".

8. Considering the above judicial precedents and based on an objective seriousness of the offence, I select 16 months as the starting point for your sentence.
9. At the time of offending the victim was 14 years old. Further at that time you were 24 years old making significant age difference between the parties (10 years). The victim is your cousin sister and your breached her trust. I consider these as aggravating factors and add 10 months to reach 26 months imprisonment.
10. In mitigation you submitted the following grounds:
    1. You are 24 years old ;
    2. Reconciled ;
    100. Sole bread winner of the family;
    4. Remorseful.
11. 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.
12. In my view this applies to other sexual offences also. Further this is not an offence that can be reconciled under the Criminal Procedure Act. You are also not a first offender and hence not entitle for discounts for your past good behavior.
13. You pleaded guilty at the first available opportunity and saved the victim from giving evidence. You also saved the time and resources of this court. For that giving full credit, I deduct 1/3 to reach 18 months imprisonment.
14. Now I have to consider whether to suspend your sentence pursuant to section 26(2) (b) of the Sentencing and Penalties Act.
    15. Presently there are an increase number of sexual offences in this country involving children. It appears that most of the perpetrators are relatives and close family members. The children need to be protected in their homes and people who commit these kinds of offences need to be punished with harsh sentences. Hence I find a custodial sentence is warranted in this case.
    16. TEVITA DAKUNA, accordingly I sentenced you to 18 months imprisonment for this charge.
    17. For the safety of the victim I also grant a permanent domestic violence restraining order with standard non-molestation conditions.
18. 28 days to appeal.

Shageeth Somaratne

Resident Magistrate