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State v Prasad - Sentence [2018] FJMC 98; Criminal Case 56 of 2016 (2 November 2018)

IN THE MAGISTRATES’ COURT OF FIJI

AT NAUSORI

Criminal Case No: - 56/2016

STATE

V

NAVIN ANIL PRASAD

For the Prosecution: Cpl Gandhi

The accused: Absconding and unrepresented

Date of Judgment: 01st of November 2018

Date of Sentence: 02^nd of November 2018

SENTENCE

1. The accused was convicted after a hearing to one count of Indecent Assault contrary to section 212(1) of the Crimes Act No 44 of 2009(“Crimes Act”).
2. During the hearing, the following facts were proved by the prosecution.
3. The victim who was 17 years old and was working in the Nav IT solution, Nausori as a salesperson and the accused was her boss there. On 05^th December 2015 whilst she was working in the shop, the accused came and touched her breasts. He also grabbed her and kissed her lips. She managed to escape from the place and reported the matter to the police.
4. The maximum penalty for Indecent Assault under the Crimes Act is 05 years imprisonment.
   5. In RT Penioni Rokota v State HAA 68/02S her Ladyship Justice Shameem said "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"
6. 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".

7. Considering the above judicial precedents and based on an objective seriousness of the offence, I select 16 months as the starting point for the accused.
8. The victim was 17 years old and a juvenile when this offence was committed on her. At that time the accused was nearly 60 years old thus putting significant age difference between the parties. The accused was a family friend of the victim’s family and this was the reason she was working there. By committing this offence he breached the trust of the victim as well as her family. Finally, this was a sexual harassment in the workplace by an employer against his worker. For all these aggravating factors I add 16 months to reach 32 months imprisonment.
9. The accused is absconding from the court and hence I have no opportunity to hear his personal mitigating factors.
   10. In Anand Abhay Raj v State [2014] FJSC 12; CAV 003 of 2014) his Lordship Chief Justice Anthony Gates held that in sexual offences little weight can be given for personal mitigating factors of an accused. Hence even if available, I would have disregarded his personal mitigating factors.
   11. When this offence was committed the accused was a first offender and only for that limited ground, I deduct 06 months to reach 26 months imprisonment.
       12. This is a case where the employer was using his authority and trying to sexually harass one of the sales assistants who was working in that place. According to a study conducted by Fiji Women’s Rights Movement (FWRM) in 2016, one in five women has experienced some kind of sexual harassment in the workplace in Fiji. But it appears that the victims are reluctant to report about these incidents. This is confirmed by the study of FWRM which shows only 18% of the incidents were reported in 2016 compared to 23% in 2002. Some of the reasons highlighted by the report are the victims were afraid of losing their jobs and also fear of making enemies in the workplace. Hence they would suffer silently which would encourage the perpetrators to continue with their acts.
   13. It is the duty of the court to show through harsh sentences that these kinds of sexual harassments are not acceptable in the workplaces.
       14. Accordingly, the accused is sentenced to 26 imprisonments for this charge with a non-parole period of 20 months. Since the accused is absconding this sentence is to be activated from the date of his apprehension.
       15. The accused is on bail from this court and was allowed to travel to New Zealand on 13/12/2017 for some employment matter. From that time he failed to come to the court and this morning the prosecution confirmed that the accused is still out of the country. It appears that the accused is absconding from the court to avoid this case. Since he has been sentenced today, the prosecution has to liaise with the ODPP and other relevant authorities and see the possibility of getting the accused back to Fiji to serve this 26 months imprisonment.
   16. 28 days to appeal.

Shageeth Somaratne

Resident Magistrate