State v Naulu [2011] FJHC 113; HAC041.2010 (7 February 2011)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 041 OF 2010

BETWEEN:

THE STATE

AND:

SEMI NAULU

Counsel: Ms. S. Bull for the State
Ms. M. Lemaki (Duty Solicitor) for the Accused

Date of Hearing: 4 February 2011
Date of Sentence: 7 February 2011

SENTENCE

[1] Semi Naulu, you stand convicted of sexual assault contrary to section 210(1)(a) and (2) of the Crimes Decree of 2009. This is a new offence under the Crimes Decree that captures sexual assault where any part of the genitalia or anus of a person comes into contact with any part of the mouth of a person, but falls short of penetration.

[2] The facts are that you and the victim live in the same village. On 26 August 2010, at about 10am you called the victim inside your house. At the time, the victim was 12 years old. She regarded you as a grandfather. You removed her clothes and fondled and sucked her breasts. You then licked her vagina. After committing these indecent acts you gave her 60 cents.

[3] You have committed an aggravated form of sexual assault. The maximum penalty for this offence is 14 years imprisonment. There are no local cases on this offence for guideline.

[4] Counsel for the State in her well researched sentencing submissions point out that section 210 of the Crimes Decree is identical to section 352 of the Criminal Code (Qld), Australia. The penalties are also the same. The sentences in Queensland range from two to three years imprisonment (R v P [2001] QCA 130 (5 April 2001)).

[5] You are 64 years old and unemployed. Little is known about your marital status. You are diabetic and had a leg amputated. You are a first time offender.

[6] I treat your early guilty plea, co-operation with the police, expression of remorse, previous good character, old age, illnesses and disability as mitigating factors. I give considerable weight to your guilty plea. By pleading guilty you have saved a child victim from the stress of giving evidence of sexual nature.

[7] Although I give weight to your previous good character, old age, illness and disability, these factors counterbalance the serious nature of offending by you. You committed the offence in your old age and tarnished your previous good character. The principle of general deterrence applies in your case. Your illness and disability is not such as to expose you to undue hardship in prison. The prison will have to monitor your diabetic condition, provide proper diet and make arrangement for your mobility.

[8] The aggravating factors are the tender age of the victim and the breach of trust by you. Sexual crimes against children must be denounced. Children are vulnerable. They can be easily lured by gifts and money. It was your responsibility to protect the victim because she was like your granddaughter. Instead, you exploited her by giving small amount of money to stop her from reporting your crime.
[9] Taking all these factors into account a sentence of 4 years imprisonment is just and appropriate. However, you have been in custody on remand since 13 September 2010. Accordingly, I reduce the sentence to 3 years imprisonment.

[10] Your sentence is 3 years imprisonment. Due to the seriousness of the offence, I order that you serve 18 months before eligible for parole.

Daniel Goundar
JUDGE

At Labasa
7 February, 2011

Solicitors:
Office of the Director of Public Prosecutions, Labasa for the State
Office of the Legal Aid Commission, Labasa for the Accused