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State v Bakewa - Sentence [2019] FJMC 36; Criminal Case 254 of 2017 (2 January 2019)

IN THE RESIDENT MAGISTRATES COURT
AT SIGATOKA - CRIMINAL JURISDICTION

Criminal File No. 254 of 2017

BETWEEN : State

PROSECUTION

AND : Lemeki Bakewa

ACCUSED

For the State : Inspectamim

For the Accused : In-person

SENTENCE

1. The Accused has been foun found guilty for the offence of Indecent Assault contrary to Section 212 (1) of the Crimes Act 2009.
   
2. The brief facts are that the accused on 15^th April, 2016 had used his hand to poke the buttocks of the complainant.
   
3. The complainant was fully clothed when this occurred.
   
4. In mitigation the Accused stated that he was 46 years old, married with one child. He was self-employed and would earn $35/day for two (2) days. He stated that he was the sole breadwinner.
   
5. Prosecution informed the court that the accused was a first offender.
   
6. This court remanded the accused to await his sentencing.
   
7. The complainant in her evidence had also stated that she had forgiven the accused.
   
8. The maximum sentence for the offence of Indecent Assault is 5 years imprisonment with courts accepting that the decision in RT Penioni Rokota v State HAA 68/02S as the relevant tariff for this offending. In RT Peniona Rakota’s (supra) case Shameem J (as she then was) held that:
   

"Sentence for indecent as ranges from 12 m 12 months imprisonment to 4 years. The gravity of the offence would determine the starting point for the senteA non-custodial sentence will only be appropriate in cases where the ages of victim and thed the accused are similar and assault of a non-penetrative and fleeting type”

9. In reaching the appropriate sentence the court is mindful of Section 4(1) of the Sentencing and Penalties Act 2009 which it regurgitates herein below as follows:

“Sentencing Guidelines

4. — (1) The only purposes for which sentencing may be imposed by a court are —

(a) to punish offe to an extentxtent and in a manner which is just in all the circumstances;

(b) to ct the community from deom ders;

(c) to deter offe or other pers persons from committing offences oces of the same or similar nature;

e) to signify the court and thnd the community denounce the commission of such offences; or

(f) anbination of these purp...rp...”

10. Considering ravity of offending, the accused’s culpability, time time spent in remand and first offender status this Court sentences the accused to twelve (12) months imprisonment.
    
11. The court considers that the indecent assault was non-penetrative and was fleeting.
    
12. As such the twelve (12) month imprisonment sentence shall be suspended for a period of two (2) years pursuant to section 26(1)(2)(b) of the Sentencing and Penalties Act 2009.
    
13. If the accused is convicted within the next two (2) years pursuant to section 28 of the Sentencing and Penalties Act 2009 this sentence may be activated.
    
14. The clerk of the court shall explain the sentence to the accused.
    
15. 28 days to appeal.

J.N.L SAVOU
Resident Magistrate
2^nd January 2019