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State v Vakuruivalu [2016] FJMC 203; Criminal Case 1276.2016 (17 October 2016)

IN THE MAGISTRATES’ COURT OF FIJI

AT SUVA

Criminal Case No: - 1276 /2016

STATE

V

JESE VAKURUIVALU

For the Prosecution : - Cpl Kumar

For the Accused : - Ms.Nabanivalu(LAC)

Date of Sentence : 17^th of October 2016

SENTENCE

1. JESE VAKURUIVALU , you were charged with one count of Indecent Assault contrary to section 212(1) of the Crimes Decree and one count of Damaging Property contrary to section 369(1) of the Crimes Decree.
2. You pleaded guilty and also admitted the summary of facts presented by the prosecution. According to facts the complainant is working as cleaner and you are working as an orderly at St.Giles Hospital. On 06/06/2016 whilst the complainant was walking you made a sound and then approached her and pulled her skirt down. Whilst the complainant was struggling to stop that you tore her skirt damaging it.
3. I am satisfied about your plea was voluntarily and unequivocal. Accordingly I convict you for these offences.
4. The maximum penalty for this offence under the Crimes Decree is 05 years imprisonment.
5. The tariff was discussed in RT Penioni Rokota v State HAA 68/02S where her Ladyship Justice Shameem held :

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

6. For Damaging Property the prescribed penalty is 02 years imprisonment and there is no fixed tariff.
7. In Laisiasa Koroivuki v the State ( Criminal Appeal AAU 0018 of 2010) the Fiji Court of Appeal discussed the guiding principles for determining the starting point in sentencing and observed :

"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. If the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range".

8. Considering the gravity of offending I select 14 months as the starting point for your sentence.
9. You were working with the complainant in the same work place and committed this offence. Hence it appears that this is a sexual harassment in the work place and for that I add 10 months to reach 24 months imprisonment.
10. The learned legal aid counsel in her oral mitigation submitted that you are married with 06 children and remorseful of this behavior. You are a first offender. For these I deduct 06 months to reach 18 months imprisonment.
11. You pleaded guilty at the first available opportunity and for that I deduct 1/3 to reach 12 months imprisonment.
12. Considering all the circumstances I sentenced you to 06 months imprisonment for the Damaging Property and made this concurrent to the Indecent Assault.
13. Now I have to consider whether to suspend your sentence.
14. The sexual harassments at the work place are embarrassing and humiliating to the victims leading them to silently suffer instead to reporting to the authorities. The impact is also disastrous to the victims and also erodes the productivity at the work place. In this case the victim has to be commended for coming out and reporting this matter to the police. In my view the sentences for this kind of offences should reflect the disapproval of these behaviors by the perpetrators by the court as well as to deter these from happening in future in the work places.
15. Hence a custodial sentence is warranted in this case even with the past good behavior of the accused and hardships that would be faced by his family.
16. JESE VAKURUIVALU, I sentence you to 12 months imprisonment for this charge.
17. 28 days to appeal.

Shageeth Somaratne

Resident Magistrate