Nariva v The State [2006] FJHC 6; HAA0148J.2005S (9 February 2006)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Crim. App. No: HAA0148 of 2005S

Between:

MOSESE NARIVA
Appellant

And:

THE STATE
Respondent

Hearing: 20th January 2006
Judgment: 9th February 2006

Counsel: Appellant in Person
Ms J. Tuiteci for State

JUDGMENT

This is an appeal against conviction and sentence. The Appellant was charged with criminal trespass, indecent assault and damaging property. On the 26^th of September 2005, he waived his right to counsel and pleaded guilty on all counts, after they had been explained to him.

The facts were that on the 24^th of September 2005, the Appellant entered the house of one Ilisoni Lagi, at Lami Village. In the house was seventeen-year old Lusiana Bola, a form 5 student of Wesley College. She asked him to leave the house. He held her neck, dragged her into the bedroom and offered to have sexual intercourse with her. When she refused, he touched her breast. She freed herself and ran out of the house. The Appellant then took a wooden stick beside the sitting room window and damaged the sewing machine belonging to the complainant’s mother. The complainant was alone in the house during the incident. The Appellant smelt of liquor. He was later arrested and interviewed. He admitted trespassing into the compound of Ilisoni Lagi, and damaging the sewing-machine. However he said he could not recall the indecent assault as he was very drunk at the time. The Appellant admitted these facts and was convicted.

He was a first offender, and a 28 year old labourer living in Lami. He asked for leniency saying that he was looking after his parents.

The sentencing remarks read as follows:

“The court cannot pass a lenient sentence in this sort of circumstances.

Count 1 – Sentenced to 3 months imprisonment.

Count 2 – Sentenced to 1 year imprisonment.

Count 3 – Sentenced to 2 years imprisonment.”

The sentences were all to run concurrently with each other.

The grounds of appeal are that the Appellant was wrongly convicted on the counts of trespass and indecent assault as he had not committed the offences and that the sentences were harsh and excessive in the light of the Appellant’s previous good record.

In his written submissions, the Appellant said that he committed the offences under the influence of alcohol, and as a result of peer pressure. He outlined his family circumstances saying that he was the sole breadwinner in his family with two sisters still at school.

State counsel opposed the appeal against conviction and said that because the sentences fell within their respective tariffs, that a total sentence of 2 years imprisonment was not harsh or excessive.

I cannot agree. It is correct that the record clearly shows unequivocal pleas of guilty from which there can be no appeal. It is also correct that the sentences individually are not wrong in principle in that they fall within the tariffs for the offences. However, the sentence of 2 years imprisonment was harsh for damaging property when there was no evidence of the extent of the damage, and when this was clearly not the worst type of offending for criminal damage.

Further a total sentence of 2 years imprisonment for a 28 year old first offender is excessive and inappropriate. The courts must always make every effort to keep young first offenders out of prison. Prisons do not always rehabilitate the young offender. Non-custodial measures should be carefully explored first to assess whether the offender would acquire accountability and a sense of responsibility from such measures in preference to imprisonment.

In this case, I would maintain the sentence on Count 2 of 12 months imprisonment. Although the victim was young and in her own home, this was a case of fleeting indecency and not one warranting a longer sentence. The tariff for indecent assault is 1 to 3 years imprisonment. The sentence of 2 years on Count 3 is however clearly excessive. It is reduced to 1 year and all sentences must be served concurrently with each other. The sentence on Count 1 remains the same. The total term of 12 months imprisonment is to be suspended for a period of 12 months, the period of suspension to run from the 26^th of September 2005, to account for the period already served.

This appeal is allowed.

Nazhat Shameem
JUDGE

At Suva
9^th February 2006