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State v Mocevakaca - Sentence [2019] FJHC 350; HAC85.2016 (17 April 2019)

IN THE HIGH COURT OF FIJI
AT SUVA
[CRIMINAL JURISDICTION]

CRIMINAL CASE NO: HAC 85 of 2016

STATE

V

ISIMELI MOCEVAKACA

Counsel : Ms. Moumita Chowdhury for the State
Ms. Talei Kean for the Accused

Dates of Trial : 1-3 April 2019

Summing Up : 4 April 2019

Judgment : 8 April 2019

Sentence : 17 April 2019

The name of the complainant is suppressed. Accordingly, the complainant will be referred to as “LS”.

SENTENCE

[1] Isimeli Mocevakaca you were charged with the following offences:

FIRST COUNT

Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (a) of the Crimes Act 2009.

Particulars of Offence

ISIMELI MOCEVAKACA, on the 11^th day of November 2015, at Samabula in the Central Division, had carnal knowledge of LS without her consent.

SECOND COUNT

Statement of Offence

SEXUAL ASSAULT: Contrary to Section 210 (1) (a) of the Crimes Act 2009.

Particulars of Offence

ISIMELI MOCEVAKACA, on the 22^nd day of January 2016, in Samabula, in the Central Division, unlawfully and indecently assaulted LS by kissing her breast and sucking her nipples.

THIRD COUNT

Statement of Offence

ASSAULT CAUSING ACTUAL BODILY HARM: Contrary to Section 275 of the Crimes Act 2009.

Particulars of Offence

ISIMELI MOCEVAKACA, on the 9^th day of February 2016, in Samabula, in the Central Division, assaulted LS thereby causing her actual bodily harm.

[2] You pleaded not guilty to the above mentioned charges and the ensuing trial was held over 3 days.

[3] At the conclusion of the evidence and after the directions given in the summing up, by a unanimous decision, the three Assessors found you not guilty of the lesser or alternative charge of Sexual Assault in respect of Count One and not guilty of the lesser or alternative charge of Indecent Assault in respect of Count Two. However, the Assessors unanimously found you guilty of the lesser or the alternative charge of Common Assault, in terms of Section 274 of the Crimes Act No. 44 of 2009 (Crimes Act) in respect of Count Three.

[4] Having reviewed all the evidence, this Court agreed with the unanimous opinion of the Assessors finding you guilty of the lesser or the alternative charge of Common Assault in respect of Count Three. Accordingly, you were convicted of Common Assault in terms of Section 274 of the Crimes Act.

[5] In support of their case, the prosecution called the complainant, LS.

[6] In this case it is admitted facts, and as such proved, that you, on the 9 February 2016, at Samabula (in the Central Division), hit the complainant.

[7] Section 4 of the Sentencing and Penalties Act No. 42 of 2009 (“Sentencing and Penalties Act”) stipulates the purposes for which sentencing may be imposed by a Court; and sets out the relevant factors that a Court should take into account during the sentencing process. I have duly considered these factors in determining the sentence to be imposed on you.

[8] In terms of Section 274(1) of the Crimes Act “A person commits a summary offence if he or she unlawfully assaults another person.” The prescribed penalty for this offence is a term of imprisonment for 1 year.

[9] In State v Saini Pinau & others [2013] FJHC 195; HAC012.2013 (18 April 2013); His Lordship Justice Paul Madigan held that:
“The maximum sentence for common assault is one year imprisonment; there is no set tariff and it is therefore left to the discretion of the sentencing tribunal to pass an appropriate sentence. Suspended sentences are not uncommon.”
[10] Similarly, in State v Sokiveta [2013] FJHC 407; HAC12.2013 (8 August 2013); it was held “The tariff for Common Assault is with discretion of court and in most cases the sentence is suspended.”

[11] In my opinion, there are no aggravating factors in relation to this offence.

[12] Isimeli Mocevakaca, you are now 64 years of age [Your date of birth being 17 January 1955] and currently residing in Tacirua. You are said to be widowed with your wife having passed away in 2014. You have six children the youngest child being 17 years old and whom you still support. You are said to be self-employed as a Mechanic and doing other work whenever you can.

[13] However, the above are your personal circumstances and cannot be considered as mitigating circumstances.

[14] You have submitted that on the day of the alleged incident, you had hit the complainant twice on her legs with a belt. The complainant is your niece and was residing with you at your residence at Namadai Settlement in Samabula. You say you have done so because the complainant had not slept at home the previous night and it was to teach her a lesson as opposed to causing her any injury. Court notes that no evidence of injury has been recorded as a result of the assault.

[15] You have submitted that you were initially willing to plead guilty to the charge of Assault Causing Actual Bodily Harm. I have taken cognizance of this position.

[16] As per the Previous Conviction Report submitted by the State, there are three previous convictions recorded against you. However, the last of these convictions dates back to 1981, which is 38 years ago. Therefore, Court will consider you as a person of recent good character.

[17] You have been in remand custody for this case from 14 February 2016, the date you were arrested, until 18 March 2016. Thus, you have been in remand custody for over one month for this case.

[18] Considering the totality of the aforementioned factors, I sentence you to a term of 6 months imprisonment.

[19] The next issue for consideration is as to whether you sentence should be suspended.

[20] Section 26 of the Sentencing and Penalties Act provides as follows:

(1) On sentencing an offender to a term of imprisonment a court may make an order suspending, for a period specified by the court, the whole or part of the sentence, if it is satisfied that it is appropriate to do so in the circumstances.

(2) A court may only make an order suspending a sentence of imprisonment if the period of imprisonment imposed, or the aggregate period of imprisonment where the offender is sentenced in the proceeding for more than one offence,—

(a) does not exceed 3 years in the case of the High Court; or

(b) does not exceed 2 years in the case of the Magistrate’s Court.

[21] Considering all the facts and circumstances of this case which I have referred to above, and also considering the dicta in State v Saini Pinau & others (supra) and State v Sokiveta (supra), I am of the view that this is an appropriate case for a suspended sentence to be imposed on you. Accordingly, I suspend the 6 months term of imprisonment for a period of 3 years.

Riyaz Hamza
JUDGE

HIGH COURT OF FIJI

AT SUVA
Dated this 17^th Day of April 2019

Solicitors for the State : Office of the Director of Public Prosecutions, Suva.

Solicitors for the Accused : Office of the Legal Aid Commission, Suva.