Seru v The State [2003] FJHC 156; HAA0050J.2003S (11 November 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0050 OF 2003S

Between:

JOSATEKI SERU
Appellant

And:

THE STATE
Respondent

Hearing: 7th November 2003
Judgment: 11th November 2003

Counsel: Appellant in Person
Mr. J. Rabuku for State

JUDGMENT

The Appellant was convicted on his plea of guilty of the following offence:

Statement of Offence

INDECENT ASSAULT: Contrary to Section 154(1) of the Penal Code, Act 17.

Particulars of Offence

JOSATEKI SERU on the 4th day of May 2003 at Lami in the Central Division, unlawfully and indecently assaulted a woman namely SAINIANA LACANIVALU.

The facts were that on 4th May 2003 at 9.30am the complainant was about to enter the Food for Less Supermarket in Lami, when the Appellant, who was standing at the entrance, touched her private parts. She yelled out and reported the matter to the police. The Appellant admitted these facts and two previous convictions, one for robbery with violence and the other for larceny.

In mitigation, the Appellant said that the complainant was his cousin and that he had apologised to her in the traditional way. He said he had been drunk at the time and had now reformed.

Sentence was delivered on 12th August 2003. The learned Magistrate said that the tariff for indecent assault was 5-9 years, and he chose as his starting point, 5 years imprisonment. After adjusting for aggravating and mitigating circumstances he sentenced the Appellant to 3 years imprisonment.

The Appellant says that this sentence is harsh and excessive. State counsel agrees, saying that the tariff is actually 1-4 years imprisonment, this was a fleeting type of assault committed on an adult, and the assault itself was non-penetrative. He said that a non-custodial sentence would have been appropriate.

I agree. In Ratu Penioni Rokota –v- State Crim. App. No. HAA0068 of 2002, I set out the principles for sentencing in indecent assault cases as follows:

“Sentences for indecent assault range from 12 months imprisonment to 4 years. The gravity of the offence will determine the starting point for the sentence. The indecent assault of small children reflects on the gravity of the offence. The nature of the assault, whether it was penetrative, whether gratuitous violence was used, whether weapons or other implements were used and the length of time over which the assaults were perpetrated, all reflect on the gravity of the offence. Mitigating factors might be the previous good character of the accused, honest attempts to effect apology and reparation to the victim, and a prompt plea of guilty which saves the victim the trauma of giving evidence.

These are the general principles which affect sentencing under section 154 of the Penal code. Generally, the sentence will fall within the tariff although in particularly serious cases, a five year sentence may be appropriate. A non-custodial sentence will only be appropriate in cases where the ages of the victim and the accused are similar, and the assault of a non-penetrative and fleeting type. Because of the vast differences in different types of indecent assault, it is difficult to refer to any more specific guidelines than these.”

Applying those principles in this case, an appropriate starting point would have been 12 months imprisonment. After substantial discount for the guilty plea, the reconciliation and other mitigating factors, and increase for the fact that he committed this offence on his own cousin in a public place, I arrive at a sentence of 4 months imprisonment. Because this is clearly a case for a non-custodial sentence, I suspend the sentence for a period of 12 months.

The sentence passed in the Magistrates’ Court of 3 years imprisonment is quashed. Instead the Appellant is sentenced to 4 months imprisonment suspended for 12 months.

Nazhat Shameem
JUDGE

At Suva
11th November 2003