State v Sulua [2016] FJHC 309; HAC157.2014 (25 April 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 157 OF 2014

STATE

V

TIMOCI SULUA

Counsels : Ms M Chowdhury for the State
Mr A Chand for the Accused

Dates of Trial : 11th -13th April 2016
Summing Up : 14th April 2016
Judgment : 15th April 2016
Sentence : 25th April 2016

SENTENCE

[1] Mr. Timoci Sulua, after being convicted to the alternative charge of Sexual Assault, contrary to Section 210(1)(a)of the Crimes Decree No. 44 of 2009, you are now before this Court for imposition of your sentence.

[2] You pleaded not guilty to the charge of Rape, with which you were originally charged by the DPP. The ensuing trial lasted for three days in this Court; during which, the victim gave evidence for Prosecution, while you offered evidence for the Defence.

[3] At the conclusion of trial; having reviewed the evidence and its summing up to assessors, this Court decided to accept their unanimous opinion that you are not guilty to the charge of Rape but guilty to the alternative count of Sexual Assault and found you guilty and convicted you to the said alternative charge.

[4] The following facts were proved during the trial:

(i) The victim in this case is a married woman and also a mother of schooling child. You are a fellow villager and had consumed alcohol at her house with a group. The victim also has consumed alcohol and the drinking session which started in the evening, continued until morning of the following day.

(ii) In mid day of 14th September 2013, you have gone home for lunch and returned to the victim's house. When you entered the victim's house she was fast asleep with another female friend. You then developed a desire of having sexual intercourse with the victim, who was heavily intoxicated at that time. You then removed her pants and undergarment. You "played" with her vagina. The victim described what she felt as that you "licked" it. She then got up, punched you and chased you out.

[5] According to Section 210 of the Crimes Decree No. 44 of 2009, the maximum punishment for Sexual Assault is imprisonment of 10 years. It is a serious offence.

[6] The different degrees of seriousness due to the manner of committing the offence and the applicable tariff for Sexual Assault are set by the Judgment of Madigan J.in State v Laca [2012] FJHC 1414. The applicable category in this case is category 2(ii) being the accused was in contact with the genetalia of the victim by using part of his body other than his genetalia. The starting point of imprisonment for Sexual Assault is 2 years. The tariff is between 2 years to 8 years.

[7] In determining the starting point within the said tariff, Court of Appeal in Laisiasa Koroivuki v State (Criminal Appeal AAU 0018 of 2010) has formulated the following guiding principles:

"In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this time. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff. If the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range".

[8] Considering the nature of offending, in the light of the above guiding principles, I commence your sentence at 2 years of imprisonment for the charge of Sexual Assault.

[9] The aggravating factors are:

(i) Breach of trust the victim had towards you as a neighbour and a fellow villager;

(ii) Significant degree of opportunistic planning;

(iii) Taking advantage of the victim's vulnerability as she was intoxicated and sleeping;

(iv) Blatant intrusion on victim's right of privacy of her home;

(v) Display of total disregard to the victim's wellbeing as she had to suffer psychological trauma due to this incident becoming a topic of discussion among other villagers.

[10] I add 2years for the above aggravating factors. Now your sentence is 4 years.

[11] The mitigating factors are:

(i) You could be considered as a first offender as there are no history of similar offending;

(ii) You are a 42 year old unmarried person;

(iii) You support your old and sick mother being her only child and also your step father;

(iv) You are employed and earns $ 180 per month and is the sole breadwinner;

(v) One incident and no repetition.

[12] I deduct 1 year and 6 months for the above mitigating factors. Now the sentence is 2 years and six months.

[13] You were in remand for this case for two weeks.

[14] I deduct your two week remand period from the sentence and now the sentence is 2 years 5 months and 2 weeks. You drew attention of Court to section 15(3) of the Sentencing and Penalties Decree and invited it to consider lesser or alternative sentence in lieu of a custodial sentence. The State submits a custodial term is warranted. Considering the nature of the offending, this Court is inclined to hold the view that an alternative sentencing option is not appropriate as per DPP v JolamePita 20 FLR 5 since there are no such special circumstances.

[15] The accused also moves this Court to consider not imposing a non parole period. This Court is of the view that considering the provisions contained in Section 18 (1) of the Sentencing and Penalties Decree, a non- parole period should be imposed and orders that you are entitle to parole only after you complete 1 year and 6 months of the terms of imprisonment.

[16] Your sentence is as follows:

(i) Count of Sexual Assault - 2 years 5 months and 2 weeks of imprisonment

Summary

[17] You are sentenced to 2 years 5 months and 2 weeks of imprisonment. You will not be eligible for parole until you complete serving 1 year and 6 months of imprisonment.

[18] You have 30 days to appeal to the Court of Appeal.

Achala Wengappuli
JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Suva.
Solicitor for the Accused : Legal Aid Commission, Suva.