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State v Raj [2016] FJMC 40; Criminal Case 161.2011 (18 March 2016)

IN THE MAGISTRATES' COURT OF FIJI
AT TAVEUNI

Criminal Case No: - 161/2011

STATE

V

ROHIT RAJ

For the Prosecution: WPC Lani
For the Accused : Mr.Inia Rakaria(LAC)
Date of Judgment : 16th of March 2016
Date of Sentence : 18th of March 2016

SENTENCE

1. ROHIT RAJ , you were convicted after a trial to one count of Indecent Assault contrary to section 212(1) of the Penal Code.
   
2. The Prosecution proved beyond reasonable doubt that on 02nd August 2011 you indecently assaulted the complainant by touching her breast.
   
3. The maximum penalty for this offence under the Crimes Decree is 05 years imprisonment. In the Penal Code the identical offence under the section 154(1) carried similar penalty and therefore the tariff applied under the Penal Code is still valid for this offence.
   
4. In RT Penioni Rokota v State HAA 68/02S madam Justice Shameem held that
   

"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"

5. Considering gravity of offending I select 02 years as the starting point.
   
6. There are no aggravating factors and therefore I would not enhance your sentence.
   
7. Mitigating factors as submitted by the learned defence counsel are 31 years old, single, sole bread winner and first offender and for these I deduct 06 months to reach 18 months imprisonment.
   
8. Now I would consider whether to suspend this sentence as urged by the defence . You are a first offender and promised not to reoffend. Also the age of the parties are similar and this can be considered as non-penetrative assault.
   
9. Therefore for the purpose of reform I suspend this 18 months imprisonment to 03 years. If you commit any offences during next 03 years you can be charged under section 28 of the Sentencing and Penalties Decree.
   
10. 28 days to appeal.
    

Shageeth Somaratne
Resident Magistrate