State v Vilisi [2010] FJHC 215; HAA011.2010S (29 June 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO. HAA 011 OF 2010S

STATE

V

BILI VILISI

Counsels: Ms. S. T. Leweni for the State Ms. M. Savou for the Respondent (Accused)

Hearing: 7th June 2010
Judgment: 29th June 2010

JUDGMENT

1. On 20th January 2010, the accused, after waiving his right to counsel, pleaded guilty to the following:

Statement of Offence

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

Particulars of Offence

BILI VILISI on the 19th day of April 2009 at Lami in the Central Division indecently assaulted a girl namely ANASEINI SOQO.

2. The prosecution then read her summary of facts to the court. Briefly, it was as follows. On 19th April 2009, the complainant, aged 8 years old, was residing with a grand-uncle, the accused, aged 57 years old, at Kalekana Settlement in Lami. On 29th April 2009, after 6pm, the complainant, after returning from church, was asked by the accused to take off her panties. He also called her to the church hall, and touched her thighs. The accused then asked and accompanied the complainant to his house to massage her. At the house, he told the complainant to take off her panty. Later the complainant was seen fleeing from his bedroom, with her panties down, and she was crying.

3. The above summary of facts was agreed to by the accused, and as a result, he was found guilty as charged, and convicted accordingly. He was found to be a first offender. The court then passed the following sentence:

"...Since the accused is the first offender and pleaded guilty to the charge without wasting the time of the Court, I proceed to impose 6 months imprisonment sentence on accused and suspended it for 18 months.

It is explained to the accused if he commits any offence during that 18 months period he is liable to be imprisoned for 6 months period..."

4. The State appealed against the sentence on the following grounds:

(i) That the learned Magistrate erred in law in suspending the sentence of 6 months imprisonment when there were no exceptional circumstances to justify a suspended sentence;

(ii) That the sentence was manifestly lenient taking into account all of the circumstances of the case.

5. Ground 4(1) of the Appeal:

(i) The prosecutor referred the court to section 29(3)(a) of the Penal Code, Chapter 17, which read as follows:

"... (3) A court which passes a sentence of imprisonment for a term of not more than six months in respect of one offence shall not make an order under the provisions of subsection (1) where:-

(a) the act or any of the acts constituting that offence consisted...of indecent conduct with or towards a person under the age of sixteen years ..."

On this ground alone, and by virtue of the terms of section 29(3)(a) of the Penal Code abovementioned, this court must allow the State’s appeal on this ground. A discussion on the point was done in DPP v Radovu, Criminal Appeal No. 0006 of 1996, High Court, Labasa.

6. Ground 4(ii) of the Appeal:

(i) The State complained that the 6 months prison sentence on the accused, which was suspended for 18 months, was "manifestly lenient". Given the conclusion the court has reached in paragraph 5 abovementioned, that is, the court cannot legally suspend the 6 months prison sentence, by virtue of section 29(3)(a) of the Penal Code, Chapter 17, the 6 months prison sentence, as it is, obviously and "manifestly lenient". Consequently, the suspension must be lifted.

7. The appeal by the State is therefore allowed. The tariff for indecent assault is a sentence between 12 months and 4 years imprisonment: Ratu Penioni Rokota v The State, Criminal Appeal No. HAA 0068 of 2002, High Court, Suva. The maximum sentence for indecent assault is 5 years imprisonment. I would start with a sentence of 12 months prison. The aggravating factors include a serious breach of trust between a granduncle (57 years old) and the complainant [8 years old], the continuous request to the child to take off her panty, the touching of her thighs and taking her to his bedroom for a massage, where she flee therefrom crying and her panty pulled down to her knees. I would add 2 years for the aggravating factors, making a total of 3 years. The mitigating factors were the guilty plea, and that he was a 1st offender at the age of 57 years. I deduct 2 years for the mitigating factors, leaving a balance of 12 months prison.

8. The 6 months prison sentence suspended for 18 months from 20th January 2010, in the Suva Magistrate Court is set aside. In its place, the accused is sentenced to 12 months imprisonment, to take effect immediately.

Salesi Temo
ACTING JUDGE

AT Suva
29th June 2010