Banuve v The State [2004] FJHC 475; HBM0031.2004L (4 October 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HBM0031 OF 2004L

VARASIKO BANUVE
Appellant

v.

THE STATE
Respondent

Mr. E. Veretawatini for the Appellant
Mr. K. Tunidau for the Respondent

Hearing & Ruling: 4 October 2004

EXTEMPORE RULING

The appellant in this matter was convicted at the Ba Magistrates Court on the 13^th September 2004 and was sentenced on the 14^th September 2004 with respect to a charge of indecent assault and the Learned Magistrate sentenced the appellant to 3 years imprisonment. Particulars of the offence are:

Statement of Offence

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

Particulars of Offence

VARASIKO BANUVE on the 5^th day of March 2004 at Toge, Ba in the Western Division unlawfully, indecently assaulted a woman namely SEINI CAWAI by squeezing her breast.

Facts as they appear from the record of the Magistrates Court were that the appellant having observed that the husband of the victim had left the home of the victim, entered the home, lay on the victim and squeezed her breast. The victim at the time was asleep in her bed, wearing a towel and a T-shirt. The victim ran outside and no further action was taken by the appellant.

The appellant and the victim are related, in that the appellant is the uncle of the victim. The appellant apparently was a regular visitor to the victim’s house where he from time to time was given food, rested and at times slept.

The appellant in the court record is 36 years of age. He is married with a 7 year old son and he works as a cane farmer.

The record indicates that he has 2 prior convictions in 1987 and 1989 for completely unrelated offences.

The tariff for the offence of indecent assault was considered by Madam Justice Shameem in Josateki Seru v The State – Crim. Appeal HAA0050 of 2003S where Her Ladyship reiterated what she had said in Ratu Penioni Rakoto v The State – Crim. Appeal HAA0068 of 2002S. The principles there set out are and I quote:

“Sentences for indecent assault range from 12 months imprisonment to 4 years. The gravity of the offence would 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 gratuities violence was used, whether weapons or other implements were used and the length of time over which the assault were perpetrated, all reflect on the gravity of the offence.

Mitigating factors might be the previous good character of the accused or on as to attempt to effect the 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 affects sentencing under section 154 of the Penal Code. Generally, the sentence were 4 within the tariff or lowing particularly serious cases of 5 years sentence may be appropriate. A non custodial sentence will only be appropriate in cases where the ages of the victim and the accused dissimilar 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 guideline than this.”

I have also been referred to State v Nitesh Chandra & Ors. – Crim. Appeal HAA0018 of 2003S where again the issue was considered by Madam Justice Shameem but without in anyway interfering with the principles that I have set out above.

The facts as they appear from the judgment of the Learned Magistrate, make it clear that there was indeed no penetration in the assault effected by the appellant nor was there any violence or weapons of any type used. The victim is not a child but a married woman.

Accordingly, it appears to me that this is a matter where a suspended sentence might be considered appropriate pursuant to the guidelines to which I have referred. Whilst a suspended sentence might be appropriate, that is not in anyway to diminish the seriousness of the offence that has been committed by the appellant and it would appear to me that an appropriate starting point within the range referred to would be 3 years with a deduction of 12 months for the previous good character of the accused and as I have said there are no aggravating features that warrant any increase onto that resultant term.

Therefore I find that a term of imprisonment for 2 years is appropriate in the circumstances and that to suspend that sentence of imprisonment for a period of 3 years would be appropriate and accordingly, the sentence imposed by the Learned Magistrate of 3 years imprisonment is quashed. The appellant is sentenced to 2 years imprisonment which is suspended for 3 years.

JOHN CONNORS
JUDGE

At Lautoka
4 October 2004

Endorsement: The provision of section 29 of the Penal Code was explained to the accused.