State v Thuragacati [2010] FJMC 11; Criminal Case 04.2010 (11 February 2010)

IN THE RESIDENT MAGISTRATE’S COURT OF SUVA

Criminal Case No: 04 of 2010

STATE

V

INOKE THURAGACATI

For Prosecution: Inspector Harish
Accused: In Person

SENTENCE

1. You, INOKE THURANGACATI, are here today to be sentenced on plea of guilt on your own accord for the offence of Indecent Assault contrary to sec. 154 (1) of the Penal Code.

2. You pleaded guilty to the charge in the first occasion after reading and explaining the charge in Fijian Language. You waived your right to have a legal assistance. You are not in anyway a stranger to the Fiji legal system. So I am satisfied that you were fully aware of the consequences of guilty plea.

3. According to the facts, which you admitted, on 17th January 2010 between 2 am to 3 am you have entered into complainant’s house through a window and found complainant sleeping in her bedroom naked. You have inserted your finger into her vagina. When complainant started shouting, you have jumped out of the window. Complainant is 70 years old woman and medical report supports her version of the story.

4. Maximum sentence for the offence of Indecent Assault is five years imprisonment. In State v. Qalia [2009] FJHC 150; HAA017.2009 on 24th July 2009, Daniel Goundar J had made following observations with regard to tariff.

"In Rokota v. The State Criminal Appeal No. HAA0068 of 2002, after reviewing past cases on indecent assault, Shameem J formulated the following guidelines:

"Sentences for indecent assault range from 12 months imprisonment to 4 years. The gravity of the offence will determine the starting point for the sentence. The indecent assault of small children reflects on the gravity of the offence. The nature of the assault, whether it was penetrative, whether gratuitous violence was used, whether weapons or other implements were used and the length of time over which the assaults were perpetrated, all reflect on the gravity of the offence. Mitigating factors might be the previous good character of the accused, honest attempts to effect apology and reparation to the victim, and a prompt plea of guilty, which saves the victim the trauma of giving evidence.

These are the general principles, which affect sentencing under section 154 of the Penal Code. Generally, the sentence will fall within the tariff, although in particularly serious cases, a five-year sentence may be appropriate. A non-custodial sentence will only be appropriate in cases where the ages of the victim and the accused are similar, and the assault of a non-penetrative and fleeting type. Because of the vast differences in different types of indecent assault, it is difficult to refer to any more specific guidelines than these."

5. You are not a first offender. You have 11 previous convictions and you admitted the list. Therefore, you are not entitle for any discount for your previous good character. Keeping above-mentioned guidelines of Shameem J, I set my starting point of sentencing for 24 months imprisonment.

6. You pleaded guilty on the first occasion. Therefore you are entitle for 1/3 reduction of sentence. Your sentence now stands for 16 months imprisonment.

7. The victim is 70 years old woman. You have entered into her house at a time, everyone of the household expected to be fast a sleep. Having an urge to enter your finger into a 70 years old woman’s vagina, itself shows that you have no moral standards whatsoever. Further, I see no attempt on your part to offer apology to the victim. Considering these as aggravating factors, I add another six months to your sentence.

8. In mitigation, you said that you are 26 years old and married with a child. You are a farmer and you seek apologies of the court promising not to re-offend. I reduce four months from your sentence to reflect those mitigating factors.

9. Your sentence now stands for 18 months imprisonment. I am aware that the sentences below two years could be suspended by the court. According to my view, you are not a person who learns a lesson from your past mistakes. Your latest previous conviction was for 18 months imprisonment. Despite of that punishment you have committed this crime. There is another pending case against you in this court. Your persistence disobedience to the rule of law prevents me from suspending this 18 months imprisonment term.

10. You are therefore, sentenced to 18 months imprisonment period commencing from today.

11. You have 28 days to appeal.

On this Thursday 11th of February 2010

Kaweendra Nanayakkara
Resident Magistrate