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State v Ram [2011] FJMC 8; Criminal Case 519 of 2009 (25 January 2011)

IN THE MAGISTRATE’S COURT AT LAUTOKA

Criminal Case No 519/09

Between

THE STATE

And

ANU RAM

SENTENCE

1. You, Anu ram are to be sentenced upon being convicted for the charge of indecent assault.
   
2. The maximum sentence for this offence is five years according to Section 151(4) of the Penal Code.
   
3. You were initially charged for attempted rape. But after hearing the case the court convicted you for the offence of indecent assault.
   
4. You were a teacher of a girl’s school and the complainant was a student of yours. It was transpired that you committed this offence while giving the complainant a lift, after the evening classes at school. Although it is a very disturbing piece of evidence, I reluctantly reproduce a portion of the complainant’s evidence below, to show the seriousness of the offence committed by you.
   

“He forced me by pulling me to kiss him. Then I refused. Then he pulled out his penis. Then he wanted to have oral sex with me. He pulled me and pushed my head towards his penis. Then I pushed him away. When I pushed him he started putting his hand into my vagina. He said if I don’t want to be with him whether he can lick my vagina. I was frightened. I could not believe he would do like that being my master. I said no. He was still putting his hand in my vagina.”

5. I do not think that no other words would be necessary to describe the cruel and pervert actions committed by you. Being a school teacher, is a sacred job and the parents send their children to school with lot of faith in the system and on the teachers. Parents think that their children are in safe hands when they are with their teachers. You tarnished the image of your profession and acted in such a way that parents would be hesitant to have that relief anymore.
   
6. You said once during the trial that it is the culture to kiss and hug students and you do not see any thing wrong in that. Further you said that the principal encourages the male teachers to accompany school girls. You said that when you go on field trips with school girls you stay in the same room with them. Fiji has a very conservative culture nourished by its own traditions as well as by Indian traditions. I doubt that the parents of young girls are aware of such a culture where male teachers kiss school girls and stay in the same room with young school girls. I do not think that this kind of actions would be acceptable in any culture for that matter.
   
7. It is indeed a serious state of affairs that authorities should also look into if young school girls are exposed to this kind of acts by teachers. I should re iterate that it is the paramount duty of the principals of girl’s schools to ensure a suitable environment for their students, free of perverted actions of this nature. Also it is the duty of the parents as well, to take measures not to expose their children to menaces of this nature.
   
8. Be that as it may you are a teacher with more than ten years experience and a father of a daughter and a son. However it does not seem that your behavior and attitude fall within the standard of responsibility expected from a member of a noble profession. You have acted in a very degrading and perverted manner bringing shame and disgrace to the whole education system.
   
9. Apart from the social impact of this crime, the utmost consideration has to be given to the trauma and agony gone through by the victim. You breached the trust placed upon you by the victim and her parents. It is hard to imagine the magnitude of the trauma and the disgust a young school girl would have gone through. This incident affected her education and she had to change her school as well. It is no doubt that this would be a permanent scar in her entire life.
   
10. I have observed the following aggravated features in this case;
    
    1. You committed this offence on a student of yours
    2. The victim is a young school girl.
    100. It appears to be a pre planned offence as you took her to an isolated place without dropping her at her place.
    4. You breached the trust placed upon you by the victim and the parents.
    5. You took advantage of your position and authority as a teacher to commit this offence.
       
11. Your counsel mitigated on your behalf in the following manner;
    

“ 42 years. Married. Two children. Girl is in foRm 5 the boy is in form 3. Supports the mother of 67 years. She is sickly. Supports an uncle and aunt. Wife is a school teacher. His house is under mortgage. No previous convictions. He has been a school teacher for 14 years. He has an unblemished character. Ask for a non custodial sentence. Biggest impact of the conviction is his career is now finished. If a civil servant has conviction the employment will come to an end. His teaching career is finished. He is not going to get a career in the civil service. Ask for a non custodial sentence.”

12. Further your credentials and testimonials too were tendered in mitigation. You have a Bachelor of education degree, diploma in business studies and a certificate in business studies. Also you tendered character certificates issued to you by principals of your schools prior to this incident.
    
13. I am mindful of the fact that this conviction will cost you, your employment as a teacher. Further it appears that the sentence of this case could have an impact on the education and the future of your two children. How ever I have taken into consideration the fact that your wife is employed as a teacher and her possible financial contribution to your family.
    
14. Although indecent assault has been considered by courts as comparatively a less serious offence under normal circumstances, this case has to be distinguished from the other cases with the same charge. There is no gainsaying that the degree of this offence is far more serious than the same offence committed by an ordinary person under different circumstances. But you committed this offence while being a teacher and on a student of yours. Secondly the alleged acts are very serious in nature in the present day context, although you were convicted for indecent assault. Therefore the court has reasons to deviate from the ine of thinking of a case with similar charge although with different circumstances.
    
15. The sentencing and Penalties Decree sets out the guidelines and the principals which should be adopted by courts when sentencing offenders. I have given due regard to the expectations of the said provisions. Further I am mindful of the fact that the sentences imposed by the courts should signify the purposes of sentencing according to the Decree. In this case I am of the view that at the same time the court imposes a proportionate sentence, it should also vividly signify that the courts and the society denounce this kind of pervert behavior by the members of the teaching profession. I am seriously of the view that the sentence imposed by this court should have a strong deterrent effect on the society and it should be an eye opener to the stake holders of the student’s education including the parents.
    
16. Justice Shameem stated in Ratu Penioni Rokota V The State [2002] FJHC 168;
    

“Sentences for indecent assault range from 12 months imprisonment to 4 years. The gravity of the offence will determine the starting point for the sentence. The indecent assault of small children reflects on the gravity of the offence. The nature of the assault, whether it was penetrative, whether gratuitous violence was used, whether weapons or other implements were used and the length of time over which the assaults were perpetrated, all reflect on the gravity of the offence. Mitigating factors might be the previous good character of the accused, honest attempts to effect apology and reparation to the victim, and a prompt plea of guilty which saves the victim the trauma of giving evidence.

These are the general principles which affect sentencing under section 154 of the Penal Code. Generally, the sentence will fall within the tariff, although in particularly serious cases, a five year sentence may be appropriate. A non-custodial sentence will only be appropriate in cases where the ages of the victim and the accused are similar, and the assault of a non-penetrative and fleeting type. Because of the vast differences in different types of indecent assault, it is difficult to refer to any more specific guidelines than these."

17. With the above mentioned notions in mind I will now proceed to pick up a starting point for this case. Generally the tariff is between 12 months to 4 years for a charge of indecent assault and having taken into account the seriousness of this present case I pick my starting point as 2 years and 6 months. For the aggravating factors I Increase the sentence by 12 months. For the mitigating factors I reduce the sentence by 18 months. Thus I arrive at a sentence of 2 years for you.
    
18. I have taken into consideration the impact on your family, by the sentence in this case. Also I have considered the fact that you have already lost your employment. However it is the duty of the court to consider the impact on the victim and the society at large as well.
    
19. I have considered a decision of the Fiji High court regarding a case of similar nature. In The Sate V Muni Deo Criminal appeal Number HAA0001 of 1995, The complainant was a 9 year old girl attending a local primary school. The Respondent was the head master of that school and also the girl's class teacher. On the 6th July 1993 the complainant was alone with the Respondent in his office. He kissed her, lifted her dress, put his hand into her panties and poked one finger into her vagina. It was painful for her and she screamed. The Respondent withdrew his finger and the girl left. The Magistrate imposed a 12 months imprisonment and suspended for two years and imposed a fine of 300 dollars. The State went in appeal against the sentence as being unduly lenient. The High Court Judge did not fetter with the sentence imposed by the Magistrate since it was not wrong in principal. Yet the High Court judge went on to say;
    

"For my part, having regard to the nature of the offence, the age of the victim and the Respondents position of trust, I would not have expected circumstances that would justify the suspension of a prison sentence. That is a lenient sentence.

However I view this decision as singularly applicable to the particular facts, circumstances and submissions in this case. It should not be taken as a precedent or guide for future cases."

20. You are a first offender. I have arrived at a sentence of two years. In the circumstances the court has to consider whether it would be appropriate to suspend the sentence in whole or in part. Having taken into account all these factors, I decide to partially suspend your sentence under Section 26 of the sentencing and Penalties Decree.
    
21. Accordingly I impose two years sentence on you and I decide to suspend 18 months of your sentence. Thus you should serve an imprisonment of six months and the balance 18 months of the sentence is suspended for three years.
    

28 days to appeal

Rangajeeva Wimalasena
Resident Magistrate
Lautoka

25.01.2011