IN   THE MAGISTRATES   COURT OF FIJI
AT   NAUSORI 
Criminal Case No: - 396/2013  
       STATE
 V
			                 ILAITIA COKALACA
For the Prosecution: Sgt. Rao 
For the accused: Ms.Radole(LAC)  
Date of Judgment: 05th of March 2018 
Date of Sentence: 06th of March 2018 
(Name of the victim is permanently suppressed and referred in this judgment as Ms. SB) SENTENCE
1.	ILAITIA COKALACA, you were convicted after a hearing to one count   of Sexual Assault contrary to section 210(1) (a) of the Crimes Act No.44 of 2009(“Crimes Act”).  
2.	During the hearing the following facts proved. The victim, Ms.SB was staying in her home and the accused, who is her cousin, came there on 28/06/2013 and touched her vagina. She did not consent and later reported this to her mother and uncle. 
3.	The maximum penalty for Sexual Assault under the Crimes Act is 10   years imprisonment. Tariff is 02 to 08 years imprisonment. 
4.	In State v. Laca [2012] FJHC 1414; HAC 252.2011 (14 November 2012), his Lordship Justice  Madigan referring to the United Kingdom's Legal guidelines for Sentencing categorized sexual assault  into 3 categories.
Category 1 (the most serious)
Contact between the naked genitalia of the offender and naked genitalia face 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).
5.	You touched the vagina of the victim   and therefore this falls to category 02. In State v Naua - [2015] FJHC 105; HAC162.2013 Justice Madigan held that this category attracts 05 to 06 years imprisonment. 
6.	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. 
7.	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. 
8.	The victim was a disabled person with difficulty to speak and walk. She was alone in the home apart from her elderly grandmother who was 93 years old at that time. You were aware about the vulnerability of the victim and used that opportunity to commit this offence knowing it would be difficulty for her to resist. You are the cousin of the victim and breached the trust by engaging in this conduct. I consider these as aggravating factors and add 04 years to reach 09 years imprisonment. 
9.	In mitigation your counsel submitted that you are 26 years old, in a de-facto relationship with a one month and sole bread winner of the family. 
10.	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 the above personal mitigating factors would not be relevant for your sentence. 
11.	But the prosecution confirmed to this court that you have no previous convictions and for that I deduct 02 years to reach 07 years imprisonment. This is your final sentence. 
12.	ILAITIA COKALACA, you were aware that the victim was disabled and helpless. Whilst she was alone you approached her and fondled her private part in her home. You knew it would be difficult for her to resist and cry for help. Hence this long custodial sentence is imposed on you to denounce your behavior on that day and protect the disabled people from sexual predators in this country. 
13.	Accordingly you are sentenced to 7 years imprisonment for this charge with a non-parole period of 06 years.    
14.	28 days to appeal 
                                                                                    Shageeth Somaratne
Resident Magistrate