Home | Databases | WorldLII | Search | Feedback Magistrates Court of Fiji

State v Ligasalei [2016] FJMC 243; Criminal Case 1049 of 2016 (22 December 2016)

IN THE MAGISTRATES’ COURT OF FIJI

AT SUVA

Criminal Case No: - 1049 /2016

STATE

V

METUISELA LIGASALEI

Counsel : Ms.Swastika Sharma (ODPP) for the Prosecution

Ms. Nikisha Lata (LAC) for the Accused

Date of Sentence : 22^nd of December 2016

SENTENCE

1. METUISELA LIGASALEI , you were charged with one count of Indecent Assault contrary to section 212(1) of the Crimes Decree No 44 of 2009.
2. Initially you pleaded not guilty wherefore this was fixed for hearing. But on the day of hearing, through your counsel you informed this Court that you wanted to change your plea.
3. You pleaded guilty after that and also admitted the following summary of facts presented by the prosecution :

The victim is Amelia AtiluaMataiwai, 15 years of age, a Form 3 student at Ballantine Memorial School, residing at Suvavou village, Lami.

The accused is MetuiselaLigasalei, 48 years of age, a Police officer based at Police Special Response Unit, also residing at Suvavou village, Lami.

The accused is the victim’s father’s brother and in 2015, the victim was residing with the accused and his wife as they did not have any children.

On the 22^nd October 2015 after the victim returned from school, she saw that the accused was drinking wine with another man at his house. After finishing wine, the accused left the house and went to the village. He also took the stereo remote with him.

After waiting for some time, the victim decided to bring the remote back from the accused. The victim then went to the accused and asked for the stereo remote and his mobile phone. At this instance, the accused told the victim to go outside and wait for him.

The victim went outside and followed the footpath beside the community hall and she was followed by the accused. They were on their way back when the accused touched the victim from the back. The victim stopped walking and the suspect then touched her breast over her clothes. He also tried to kiss her and she pushed him back.

The accused then told the victim, “Liu yani I vale, baletame’uvakaotia tale noqutirivucalatakiiko, set ya”. This means “You take lead home so that I can finish up with my fantasizing you set, okay”.

The victim was scared and slept at her father’s home and also informed her sister, LitiaMataiwai, of this incident. This matter was then reported at the police station.

4. I am satisfied about your plea was made voluntarily and unequivocal. Accordingly I convict you for these offences.
5. The maximum penalty for this offence under the Crimes Decree is 05 years imprisonment.
6. 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"

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 objective seriousness and your culpability, I select 24 months as the starting point for your sentence.
9. The victim is your brother’s daughter and she was staying with you. By committing this offence you breached the trust of the victim as well as your brother. At the time of offending the victim was 15 years old and you were 48 years old. There was a big age difference between the parties. Further at that time you were a serving police officer, based at special Response Unit. I consider these as aggravating factors and add 20 months to reach 44 months imprisonment.
10. In mitigation, the counsel from the legal aid submitted that you are 49 years old, married, sole bread winner and first offender.
11. From these mitigating factors I do not think your past good behavior can be considered as a valid factor. You are a serving police officer and it is part of your job requirement is to be a person of good character. Hence I would not give weight to that.
12. For other mitigating factors, I deduct 06 months to reach 38 months imprisonment.
13. You pleaded guilty only on the hearing date when the witnesses were summoned. For that you need to be given some credit because even on last moment you saved the victim from giving evidence and subject to cross-examination. I deduct 08 months to reach 30 months imprisonment for this guilty plea.
14. You are a serving officer in Fiji police force and supposed to prevents crimes and protect the public in this country. But by committing this sexual offence against your brother’s daughter you not only betrayed the trust of them, but also brought disrepute to your organisation. Hence a custodial sentence is warranted to denounce your behavior.
15. METUISELA LIGASALEI, I sentence you to 30 months imprisonment for this charge with a non-parole period of 20 months.
16. 28 days to appeal.

Shageeth Somaratne

Resident Magistrate