Rasumu v State [2011] FJHC 378; HAA011.2011 (11 July 2011)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 011 of 2011

BETWEEN:

AKARIPA RASUMU
The Appellant

AND:

THE STATE
The Respondent

Counsel: Appellant in person
Mr. T. Ravuniwa for the Respondent

Date of Hearing: 01 July 2011
Date of Judgment: 11 July 2011

JUDGMENT

[1] This is an appeal against sentence. On 28 July 2010, the appellant was charged with indecent assault contrary to section 212 of the Crimes Decree.

[2] On 7 December 2010, the appellant pleaded guilty to the charge after waiving his right to counsel. He was sentenced by the Magistrates' Court on the same day to 3 years imprisonment with a non-parole period of 2 years and 6 months.

[3] The appellant says the sentence is harsh and excessive.

[4] The facts were that on 25 July 2010 the appellant returned home after drinking kava with his friends. He went to bed. He knew his daughter, the victim, was sleeping on his bed. His wife was away attending a funeral. At around 3am, the victim felt that somebody was touching her breast and genital area over her clothes. She woke up and saw that it was the appellant who was touching her. She pushed his hands away and walked out of the bedroom.

[5] At the time of the offence, the appellant was 47 years old. The victim was 16 years old and was a student.

[6] The appellant was arrested and interviewed under caution. He confessed to the offence to the police.

[7] In mitigation, the appellant told the learned Magistrate that he had four sons and one daughter. All of his children were attending school. He said he had sought forgiveness from his daughter. The prosecution tendered a letter from the victim stating that she had forgiven her father. The appellant had previous good character.

[8] The maximum penalty for indecent assault is 5 years imprisonment. The sentences range from 12 months to 4 years imprisonment, depending on the nature of the assault.

[9] The higher range is justified if the assault is penetrative in nature and the victim is a child. Non-custodial sentence is only appropriate if the assault is a fleeting type. These guidelines were outlined by Shameem J in Rokota v State Crim. App. No. HAA008/02S.

[10] In the present case, the learned Magistrate picked four years as a starting point. He used the fact that the appellant had breached the trust of his daughter to justify the higher starting point. The learned Magistrate then used the same fact as an aggravating factor to increase the sentence by one year. The sentence was reduced by two years to reflect the mitigating factors.

[11] There is an error of principle in the learned Magistrate's approach. Starting point should be picked without consideration of mitigating and aggravating factors. The reason for this is to avoid an offender being punished twice for the same conduct.

[12] Breach of trust was, of course, an aggravating factor in this case. However, the learned Magistrate erred in considering the breach of trust to pick the higher range of the sentence and then use the same factor as a matter of aggravation to increase the sentence. The error justifies an intervention by this court.

[13] Regard must be made to the circumstances of the offence. The assault was non penetrative. The victim had her clothes on when the assault took place. She was not threatened or physically injured during the assault.

[14] The middle range of 2 years imprisonment is an appropriate starting point. The sentence is increased to 3 years to reflect the breach of trust and reduced to 18 months for the guilty plea, remorse and previous good character of the appellant.

[15] The sentence of 3 years imprisonment is quashed and a sentence of 18 months imprisonment is substituted.

[16] The appeal is allowed.

Daniel Goundar
JUDGE

At Labasa
Monday 11 July 2011

Solicitors:
Appellant in person
Office of the Director of Public Prosecutions for State