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State v Ratumayale [2016] FJMC 2; Criminal Case 38.2016 (7 January 2016)

IN THE MAGISTRATES' COURT OF FIJI
AT SUVA

Criminal Case No: - 38/2016

STATE

v

SAILASA RATUMAYALE

For the Prosecution : -.PC Josuha
The Accused : - In person
Date of Sentence: 07th of January 2016

SENTENCE

1. SAILASA RATUMAYALE , you were charged in this Court for one count of Indecently Annoying Person contrary to section 213(b) of the Crimes Decree.
   
2. You pleaded guilty and also admitted the summary of facts. According to facts from 2008 to 2012 you repeatedly sexually harassed the complainant who was staying with you for her schooling. In one incident you massaged her thighs whilst telling her not to inform. In another incident you kissed her lips and when she turned away you licked her cheeks. These incidents forced her to leave the home.
   
3. I am satisfied that your plea was made on your free will and convict you for this offence.
   
4. Maximum sentence for this offence is 01 year imprisonment.
   

Aggravating Factors

5. You are the uncle of the victim and by committing these you have breached the trust placed on you by her who was staying in your place for schooling. At that time she was 16 years old and there was a big age difference between you and her. You were using her vulnerability as for your advantage and finally I consider this also as a domestic violence.
   

Mitigating Factors

6. You are a first offender and seek forgiveness from this Court. Also you are 71 years old.
   
7. Considering gravity of offending, I select 04 months as my starting point and add 06 months for numerous aggravating factors to reach 10 months imprisonment. For the mitigating factors deduct 02 months to reach 08 months.
   
8. Since you have pleaded guilty at the first available instance following the decision of Vilimone v State [2008] FJHC 12; HAA I deduct 1/3 from your sentence to reach 06 months imprisonment.
   
9. This Court can suspend a sentence below 02 years pursuant to section 26(2) (b) of the Sentencing and Penalties Decree.
   
10. Even though you are a first offender and pleaded guilty early I do not think suspending this sentence is appropriate. You have exploited the vulnerability of the victim for your advantage and also betrayed the trust placed on you by her .Further she was subject to this behavior for long period which even forced her to leave the home. Therefore to disapprove your behavior I sentenced you to 06 months imprisonment.
    
11. I also issue a permanent with standard non-molestation conditions in favor of the victim.
    
12. 28 days to appeal.
    

Shageeth Somaratne
Resident Magistrate, Suva