Robaigau v State [2008] FJHC 321; HAA075.2008 (20 November 2008)

IN THE HIGH COURT OF THE FIJI ISLANDS
APPELLATE JURISDICTION
AT SUVA

CRIMINAL APPEAL CASE NO: HAA 075 OF 2008

BETWEEN

APOROSA ROBAIGAU

AND

THE STATE

Appellant in Person
Ms L. Tuiketei for State/Respondent

Date of Hearing & Ruling: 31 October 2008

RULING

1. I dismissed the appeal against sentence on 31 October 2008. This is my written ruling.
   
2. Aporosa Robaigau, you were charged with one count of Indecent Assault contrary to section 154[1] of the Penal Code Cap 17. After a trial lasting 4 days in the Nasinu Magistrates Court you were found guilty and was convicted and sentenced to 3 years imprisonment with effect from 16 October 2007.
   
3. The particulars of your offence was that you between 1 January and 31 January 2007 at Nasinu in the Central Division unlawfully and indecently assaulted a woman namely Mereoni Biaunukula.
   
4. You were granted leave to appeal out of time against sentence.
   

Appeal Grounds

5. You have submitted the following grounds in support of your appeal: [summarized by the court]
   
   1. You are a first offender and 58 years old;
   2. You have reconciled with the victim – Mereoni Bulounikula;
   3. You pleaded guilty in an earlier case but the trial Magistrate did not consider it;
   4. Trial Magistrate failed to fully take into account the impact of your sentence on your family and the hardship they will face, especially your son who is in Form 7 and other members of your family who need you around the family;
   5. Sentence was harsh and wrong in principle.
      
6. You have raised various other matters in your letter of 20 August 2008, which are really irrelevant to the issue of this appeal. It is not proper that they be considered by the court in support of your sentence appeal.
   

Sentence review

7. The maximum penalty for the offence of indecent assault under section 154[1] of the Penal Code Cap 17 is 5 years imprisonment.
   
8. In this instance the trial magistrate sentenced you to 3 years imprisonment after considering your mitigation and also the aggravating factors. You have not provided any grounds for claiming the sentence is harsh or unprincipled. I will review the sentence in the context of sentences that are been passed by the High Court and Court of Appeal on the same charge and use that as the basis of evaluating the sentence which is the subject of this appeal.
   
9. In Ratu Penioni Rokota v The State [2002] FJHC 168; HAA 0068 of 2002 Justice Shameem reviewed several cases on sentencing in Indecent Assault cases under section 154[1] of the Penal Code Cap 17, from which she identified the following principles as guidelines in sentencing for this offence. They are:
   
   • Sentences for indecent assault range from 12 months to 4 years imprisonment;
   • Gravity of the offence will determine the starting point for the sentence;
   • Indecent assault of children must be considered grave;
   • The nature of the assault, whether penetrative, whether gratuitous violence was used, whether weapons or other implements were used;
   • The length of time over which the assaults were perpetrated;
   • Non-custodial sentence will only be appropriate in cases where ages of the victim and the accused are similar and the assault of a non-penetrative and fleeting type.
     
10. In Rokota (supra) the high Court reduced a 10 years imprisonment sentence to 5 years largely on the facts that the appellant was 64 years old. In Ratu Veretariki Kadavu v The State [2000] FJHC; HAA 0049 of 2000L the High Court reduced a sentence of 3 years imprisonment to 2 years imprisonment. In Mark Mutch v The State [1999] FJCA; AAU 0060 of 1999 the Court of Appeal upheld the 4 years imprisonment for the indecent assault charges where the nature of the assault was fondling of breasts and inserting of fingers into the vagina.
    
11. In this instance the sentence is 3 years imprisonment. The evidence is that the appellant touched the private part of the victim while she was sleeping on a couch. The victim was her daughter in law and it appears that the appellant’s despicable behavior had been going on for some time before the victim finally complained to the police, which became the subject of this case. It is clear from the evidence that people to whom the victim complained did not want to believe her for whatever reason. It is likely that this may have encouraged the appellant to be more brazen about his escapade.
    
12. In that light I find the sentence of 3 years imprisonment not harsh or excessive, even for a 58 year old first offender. The appellant knew full well the consequences of his action and embarrassment his actions would bring, in the shaming of the victim given her relationship to him. This is in addition to the physical assault the victim suffers. The cultural context of this offending is relevant because it shows the total disregard of the victim’s feeling and rights.
    
13. I would therefore dismiss the appeal against sentence as having no merit. I uphold the sentence in the Magistrates Court. Order accordingly.
    

Isikeli Mataitoga
JUDGE

At Suva
20 November 2008.