State v Moceisavu - Sentence [2016] FJHC 968; HAC109.2015 (26 October 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 109 of 2015

STATE

v.

NEMANI MOCEISAVU

Counsel: Ms. S. Serukai for State
Ms. M. Tarai for Accused

Hearing: 17^th and 18^th October 2016
Summing Up: 19^th October 2016
Judgment: 21^st October 2016
Sentence: 26^th October 2016

SENTENCE

[Name of the victim is suppressed. The victim will be referred to as J.R.]

1. Nemani Moceisavu, you stand convicted for 2 counts of Sexual Assault.
   

SECOND COUNT

(Representative)

Statement of Offence

SEXUAL ASSAULT: Contrary to section 210 (1) (a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

NEMANI MOCEISAVU, between the 1^st day of September 2014 and the 31^st day of October 2014, at Verata, Tailevu, in the Central Division, unlawfully and indecently assaulted ‘J.R.’, by kissing her lips.

THIRD COUNT

(Representative)

Statement of Offence

SEXUAL ASSAULT: Contrary to section 210 (1) (a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

NEMANI MOCEISAVU, between the 1^st day of September 2014 and the 31^st day of October 2014, at Verata, Tailevu, in the Central Division, unlawfully and indecently assaulted ‘J.R.’, by kissing her breasts.

2. The brief facts of the case are that you and the complainant (J.R.) were living in the same settlement. Complainant was 7 years old and you were 40 years old. On one occasion you dragged her to a grass field kissed her lips and kissed her breasts. On another occasion you went to her house when she was alone and kissed her lips and kissed her breasts.
   
3. The maximum punishment prescribed for sexual assault is imprisonment for 10 years. On tariff for sexual assault, Hon. Justice Madigan in State v. Khaiyum [2012] FJHC 1274; Criminal Case 160.2010 (10 August 2012) said.
   

“The offence of sexual assault has a maximum term of ten years. No tariff has yet been set for this new offence, but given that the summary offence of indecent assault has a maximum penalty of five years with a tariff of one to four years (Ratu Penioni Rakoto HAA 68 of 2002), the tariff for this more serious offence with double the penalty should be in the range of two to eight years”

4. The State v. Laca [2012] FJHC1414 (14 November 2012) Hon. Justice Madigan referring to sentencing guidelines in United Kingdom divided sexual assault to 3 categories.
   

Category 1 (the most serious)
Contact between the naked genitalia of the offender and naked genitalia face or mouth of the victim.

Category 2

(i) Contact between the naked genitalia of the offender and another part of the victim’s body.
(ii) Contact with the genitalia for the victim by the offender using part of his or her body other than the genitalia or an object.
(iii) Contact between either the clothed genitalia of the offender and the naked genitalia of the victim; or the naked genitalia of the offender and the clothed genitalia of the victim.

Category 3
Contact between part of the offender’s body (other than the genitalia) with part of the victim’s body (other than the genitalia).

5. In the instant case the sexual assaults were kissing the complainant’s lips and breasts. Therefore both offences fall under category 3.
   
6. The aggravating factors are that the victim was 7 years old and you were 40 years old. You took advantage of the vulnerability of the victim child.
   
7. Your mitigating factors are that you are a first offender, your personal circumstances mentioned are also taken into consideration.
   
8. For each count of Sexual Assault (counts 2 and 3) I take 4 years as the starting point. I add 2 years for the aggravating factors and deduct 2 years for the mitigating factors. Now your sentence is 4 years imprisonment. Your non-parole period will be 3 years imprisonment.
   
9. For this case you have been in remand for 1 year and 7 months. In terms of section 24 of the Sentencing and Penalties Decree 2009, the period in remand shall be regarded as a period of imprisonment already served unless a court orders otherwise.
   
10. Therefore I take that 19 months period as a period you have already served. Hence, the final period you have to serve is 29 months (2 years and 5 months). Your non-parole period will be 17 months (1 year and 5 months.
    
11. Sentences in both counts 2 and 3 to run concurrently.
    

Priyantha Fernando

JUDGE

At Suva
26^th October 2016

Solicitors
Office of the Director of Prosecution for State
Office of the Legal Aid Commission for Accused