State v Naidu [2011] FJMC 47; CRC675.2008 (30 March 2011)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal Case No 675 of 08

BETWEEN

THE STATE

AND

TOTA NAIDU

SENTENCE

1. You, Tota Naidu are to be sentenced upon being convicted to the charge of indecent assault contrary to section 176 of the Penal Code.
   
2. The maximum punishment for this offence is imprisonment for 7 years.
   
3. It was revealed during the trial that on the 24th August 2008 you put your penis into the mouth of a 2 year of child. You took the child into your house while he was playing with his siblings and attempted to satisfy your despicable sexual desires. The sister of the child saw the incident through a glass door and reported it to her grandmother. Later the matter was reported to the police. It appears that you were about 47 years old at the time of the incident. You were living in the adjoining house of the victim.
   
4. I have observed the following aggravating factors in this case;
   
   1. the victim is a 2 year old boy.
      
   2. you were about 47 years old.
      
   100. you breached the trust being a very close neighbour.
        
   4. you took the advantage of your position as an elder in the neighbourhood.
      
   5. This appears to be a premeditated and a well planned offence.
      
5. In mitigation your Counsel informed Court that;
   

"you are 50 years old. Married with 3 children. Earns 60 dollars a week. No previous convictions. A binding order may be issued for good behaviour for the next 12 months."

6. I do not see that you are remorseful of your actions. It should be noted that this is not a case where a binding order would be sufficient as far as the gravity of the offence is concerned. The court has a duty to impose severe punishments for this kind of offences as this kind of actions should be categorically denounced in a civilized society. This is not a case only against morality but it violates the fundamental principles enshrined in the United Nations Convention on the Rights of the Child as well. Unfortunately you were charged for indecent assault as there is no proper offence to charge you under the old Penal Code for the real offence you committed.
   
7. It has been the case in most of the instances that young children are molested by offenders who are known to them rather than by unknown persons. Parents leave their children with known persons with the firm belief that their children would be safe. But you have breached that trust being an elder of the immediate neighbourhood. I cannot imagine a more pervert and heinous crime than this, committed on a 2 year old vulnerable child who can not even tell his mother what happened to him. If the sister of the child had not seen this, the child would have been in more danger due to your pervert actions.
   
8. The sentencing and penalties decree sets out the following purposes of sentencing;
   
   1. to punish offenders to an extent and in manner which is just in all the circumstances
      
   2. to protect the community from offenders
      
   100. to deter offenders or other persons from committing offences of the same or similar nature
        
   4. to establish conditions so that rehabilitation of offenders may be promoted or facilitated
      
   5. to signify that the court and the community denounce the commission of such offences
      
9. In this case I pick my starting point as 2 years. For the aggravating circumstances I enhance the sentence by 12 months. I do not find any mitigatory circumstances in this case. Therefore I arrive at a sentence of 3 years imprisonment.
   
10. You are a first offender. Yet I do not think that the circumstances of this case warrant this court to impose a non custodial sentence on you having taken into account, the nature of this offence. Besides Justice Priyantha Nawana stated in State v. Vilikesa Tilalevu and Savenaca Mataki HAC 081 OF 2010;
    

"I might add that the imposition of suspended terms on first offenders would infect the society with a situation - which I propose to invent as 'First Offender Syndrome' - where people would tempt to commit serious offences once in life under the firm belief that they would not get imprisonment in custody as they are first offenders. The resultant position is that the society is pervaded with crimes. Court must unreservedly guard itself against such a phenomenon, which is a near certainty if suspended terms are imposed on first offenders as a rule."

11. Thus I impose a 3 years imprisonment on you. To reflect the abhorrence of the Court and the society for this kind of paedophilic actions, I order that you are not eligible to be considered for parole for two years and 6 months.
    

28 days to appeal.

Rangajeeva Wimalasena
Resident Magistrate

Lautoka

30.03.2011