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State v Gaunaca [2018] FJMC 30; Criminal Case 457.2018 (27 March 2018)

IN THE MAGISTRATES’ COURT OF FIJI
AT NASINU

Criminal Case No: - 457 /2018

STATE

V
TEVITA GAUNACA

For the Prosecution: WPC Taitila
The accused: In person
Date of Hearing: 23^rd of March 2018
Date of Sentence : 27^th of March 2018

SENTENCE

1. TEVITA GAUNACA , you pleaded guilty to one count of Abduction of Person under 18 years to have carnal knowledge contrary to section 211(1) (a) of the Crimes Act No 44 of 2009(“Crimes Act”).
2. You also admitted that on 20/03/2018 at Nabua you took the victim away from her father without his consent with the intention to have carnal knowledge. After the father reported the incident you were arrested and admitted to the police about this offence.
3. I am satisfied that your plea was made voluntarily and unequivocal. Accordingly I convict you for this charge.
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 above judicial precedents and based on an objective seriousness, I select 20 months imprisonment as the starting point for this sentence.
8. There are no aggravating factors and in mitigation you submitted the following :
   1. You are 20 years old;
   2. Single ;
   100. Seeking forgiveness.
9. 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.
10. 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.
11. But you are a first offender and for that, I deduct 04 months to reach 16 months imprisonment.
    12. In Naikelekevesi v The State Criminal Appeal No AAU 0061 of 2007 it was observed :

“...where there is a guilty plea , this should be discounted for separately from the mitigating factors in a case”.

13. In Posate Rainima v The State , Criminal Appeal No AAU 0022 of 2012 the Court of Appeal said :

“. It has always been accepted (though not by authorative judgment) that the "high water mark" of discount is one third for a plea willingly made at the earliest opportunity. This Court now adopts that principle to be valid and to be applied in all future proceedings at first instance.”

14. You admitted to this offence in the police station and also pleaded guilty on the first day when you were produced in the court. Hence giving full credit for your plea I deduct 1/3 to reach 12 months imprisonment.
15. Now I have to consider whether to suspend your sentence pursuant to section 26(2) (b) of the Sentencing and Penalties Act.
    16. In State v Kartik [2012] FJHC 840; HAA003.2012 (7 February 2012) Justice Madigan said:

“It is significant that the accused and the girl have known each other forsome time and wish to marry when legally able to do so. The accused is a first offender of young age, and no purpose would be served incarcerating him for this offence. The offence exists to protect young girls from predatory men with lascivious intent; but this was not the situation here. Despite the age difference it was the wish of both parties to spend the night together.”

17. Facts in this case also show that the parties were in a relationship and the victim went with the accused and stayed with him in his village. The accused is first and young offender and prepared to accept the victim and the child from her previous relationship. Hence suspending this sentence would allow him the chance to rehabilitate whilst looking after the young family.
    18. Accordingly I suspend your 12 months imprisonment to 02 years.
    19. If you commit any offences during next 02 years you can be charge under section 28 of the Sentencing and Penalties Act.
    20. 28 days to appeal.
        

Shageeth Somaratne

Resident Magistrate