Magistrates Court of Fiji

Contact between the naked genitalia of the offender and naked genitalie or mouth of the victim.

Category 2<

(i) Contact between the naked genitalia of the offender and another part of the victim's body;
(ii) Contact with the genitalia of the victim by the offender using part of his or her body other than the genitalia, or an object;
(iii) Contact between either the clothed genitalia of the offender and the naked genitalia of the victim; or the naked genitalia of the offender and the clothed genitalia of the victim.

Category 3

Contact between parts of the offender's body (other than the genitalia) with part of the victim's body (other than the genitalia).

7. You inserted your penis between the thighs of the victim and therefore this falls to category 02. In State v Naua - Sentence [2015] FJHC 105; HAC162.2013 Justice Madigan held that this category attracts 05 to 06 years imprisonment.
8. In Laisiasa Koroivuki v the State [2013] FJCA 15; AAU0018.2010 (5 March 2013) the 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.
9. Considering the above judicial precedents and based on an objective seriousness of the offence, I select 05 years as the starting point for your sentence.
10. The victim is 10 years old school boy. Further you are 35 years old putting significant age difference between the parties. I consider these as aggravating factors and add 04 years to reach 09 years imprisonment.
11. In your mitigating you submitted the following:
a. 35 years old;
b. Single;
c. Farmer;
d. Seeking forgiveness.

12. In Anand Abhay Raj v State [2014] FJSC 12; CAV 003 of 2014) his Lordship Chief Justice Anthony Gates held that in Rape cases little weight can be given for personal mitigating factors of an accused. I find this is valid for other grave sexual offences also and find there are no valid mitigating factors present from your submission.

13. But the prosecution has confirmed to me that you are a first offender and for that I deduct 01 year to reach 08 years imprisonment.
14. You have pleaded guilty early and saved the victim from giving evidence and for that giving full credit; I deduct 1/3 to reach 64 months imprisonment.
15. With the increase number of sexual offences involving the children in this country, the main considerations for this sentence is to denounce your behavior and deter future offenders in this area as well as in Fiji. Hence I find this long custodial sentence is justifiable to fulfill these objectives.
16. TEVITA VASU, you are sentenced to 5 years and 04 months imprisonment for this charge with a non-parole period of 04 years.

17. 28 days to appeal
    

Shageeth Somaratne

Resident Magistrate