Bavadra v The State [2003] FJHC 66; HAA0006J.2003S (6 March 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0006 OF 2003S

Between:

APISAI BAVADRA
Appellant

And:

THE STATE
Respondent

Hearing: 28th February 2003
Judgment: 6th March 2003

Counsel: Appellant in Person
Mr P. Bulamainaivalu for State

JUDGMENT

This is an appeal against sentence. The Appellant was charged as follows:

Statement of Offence

INDECENT ASSAULT: Contrary to Section 154(2) of the Penal Code, Act 17.

Particulars of Offence

APISAI BAVADRA, on the 22nd day of June, 2002 at Suva in the Central Division, unlawfully and indecently assaulted LETILA TUPOU.

The Appellant pleaded not guilty on the 3rd of July 2002. The hearing was listed for 28th November 2002. On that day the Appellant pleaded guilty. The facts were that on the 22nd of June 2002 at midday the Appellant was at the Suva market carpark. He saw the complainant. She was a nine-year old girl, shopping with her mother. The Appellant approached her, put his hand on her private parts and rubbed his hand in that area. When the complainant’s mother saw this, she reported the matter to the Market Police Post. The Appellant was located, interviewed and charged. These facts were admitted by the complainant. He also admitted 37 previous convictions, one of which was for Indecent Assault (1997) in respect of which he served 12 months imprisonment, and another of which was for Annoying Female in respect of which he was fined in 2000. A large number of the previous convictions are for larceny and drunk and disorderly conduct.

In mitigation the Appellant said he was 45 years old, and that he was married with 2 children. He expressed remorse, and said he was a market vendor earning $50 per week.

The learned Magistrate took into account the guilty plea and the personal circumstances of the Appellant. He said:

“This offence is very prevalent. What makes it worse, that this accused who is 45 years old committed it on a 9 year old girl. Because of the prevalence of the matter and the Accused’s previous convictions, I shall give him a custodial sentence as a deterrent to him from re-offending and to others from committing this similar offence. I shall start with 3 years, and I shall give discount for his guilty plea. I order therefore that he be sentenced to 2 years imprisonment.”

The Appellant appeals against this sentence, saying that it is harsh and excessive, and that inadequate weight was put on his mitigation. He asks for a non-custodial sentence.

The tariff for Indecent Assault in Fiji is 1 to 4 years imprisonment (Ratu Veretariki Kadavu –v- State Crim. App. HAA0049 of 2000L, Mark Mutch –v- State Crim. App. AAU0060.1999, Ratu Penioni Rakota –v- State Crim. App. No. HAA0068 of 2002). The starting point for the indecent assault of children is usually higher than that of adults. Aggravating factors include violence, the use of weapons, penetrative assault, and the length of time over which the assault took place. Mitigating factors include previous good character, apology, reparation and a prompt plea of guilty. In Mutch (supra) four year sentences for indecent assaults which involved penetration, were upheld by the Court of Appeal. In this case, there was nothing wrong in principle, in the learned Magistrate’s starting point of 3 years imprisonment. What was clearly relevant (and affected the choice of starting point) was the age difference between Appellant and complainant.

The starting point was then scaled down to reflect the guilty plea. On the facts of this case, there was no other mitigation. The resulting 2 year term is therefore correct in principle and falls within the range of sentences in Fiji for indecent assault.

For these reasons this appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
6th March 2003