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State v Turaga - Sentence [2018] FJMC 79; Criminal Case 80 of 2018 (21 August 2018)

IN THE MAGISTRATES’ COURT OF FIJI

AT VUNIDAWA

Criminal Case No: - 80/2018

STATE

V

PENISONI TURAGA

For the Prosecution : - WPC Titilia

The Accused : - In person

Date of Hearing: 20^th of August 2018

Date of Sentence : 21^st of August 2018

SENTENCE

1. PENISONI TURAGA , you were charged with one count of Indecent Assault contrary to section 212(1) of the Crimes Act No 44 of 2009(“Crimes Act”) .
2. You pleaded guilty for this charge and also admitted the summary of facts presented by the prosecution.
3. According to the facts on 28^th May 2018 the victim, 18 years old school student boarded the Tacirua Bus from Lomaivuna bus stop after school to return home at Naqara Village. On the way she was poked her buttocks number of times by the accused who was sitting behind her. The accused was arrested and admitted committing this offence in his caution interview.
4. I am satisfied that your plea was unequivocal and voluntary. Accordingly I convict you for this charge.
5. The maximum penalty for Indecent Assault under the Crimes Act is 05 years imprisonment.
6. In RT Penioni Rokota v State HAA 68/02S her Ladyship Justice Shameem said that the tariff for this offence is from

"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) his Lordship Justice Goundar 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 above judicial precedents and based on an objective seriousness of the offence, I select 12 months as the starting point for your sentence. This is selected from the lower end of the tariff.
9. The victim was 18 years old and a juvenile. In your caution interview you admitted that she is your niece and by committing this offence you breached her trust as an elder. This was committed in a public transport. I consider these as aggravating factors and add 12 months to reach 24 months imprisonment.
10. In mitigation you submitted that you are 25 years old, married and employed as a security officer.
    11. In Anand Abhay Raj v State [2014] FJSC 12; CAV 003 of 2014) his Lordship Chief Justice Anthony Gates held that in in sexual offences little weight can be given for personal mitigating factors of an accused. Hence I disregard your above personal mitigating factors.
    12. You have no previous convictions for sexual offences. But you have valid convictions for other offences and hence I would not give discounts for your previous good character.
    13. You admitted this offence during the police investigation and also maintained this position by pleading guilty on the first day when you appeared in the court. This shows genuine remorse from your part and also saved the victim from giving evidence in the court. Giving full credit to your early guilty plea I deduct 1/3 to reach 16 months imprisonment.
    14. Now I have to consider whether to suspend your sentence pursuant to section 26(2) (b) of the Sentencing and Penalties Act.
        15. You are not a first offender and also sexually assaulted your niece who was 18 years old at that time. I am also mindful that this was committed in a public transport. Sexual harassments in the public transports need to be denounced with harsh sentences to protect the women and children who are daily using them for their transport.
        16. PENISONI TURAGA, Accordingly I sentence you to 16 months imprisonment for this charge.
        17. For the safety of the victim I also grant permanent domestic violence restraining order with standard non-molestation conditions.
    18. 28 days to appeal.

Shageeth Somaratne

Resident Magistrate