State v Valeuto [2011] FJMC 63; Criminal Case 267 of 2009 (24 May 2011)

IN THE MAGISTRATE'S COURT
AT NASINU

Criminal Case No: 267/2009

STATE

v.

IOWANE VALEUTO

Ms. Taina Leweni – State Counsel for the DPP office
The accused unrepresented and appeared in person

SENTENCE

1. You, Iowane Valeuto, are here, to be sentenced on admission of guilt on your own accord for the following offence namely:

Indecently Assault: Contrary to Section 154[1] [c] of the Penal Code.

There are two counts in this regard.

I am satisfied with your plea is unequivocal and that you understand the repercussion of your plea. I am further satisfied the facts of this case present, included and proved every elements of this offence.

2. According to the facts, (which you have admitted), between 1st March 2007 t0 31st March 2007, you indecently assaulted Sokoveti Vaubula. There were two incidents. The first one was while 11 year old child victim was sleeping with her mother at that night, you tried to pull down her pants, and thereafter she kicked your head and managed to escape. Second incident was the serious incident. The victim was alone with you and you forcefully undressed her. Victim was frightened and shivering. Then you began to lick her vagina and sucked her nipples. Then you took off your pants and put your penis on her vagina. Then you proceeded to slide your penis over victim's vagina whilst sucking her nipples. You did this few minutes and left the victim.

3. Maximum penalty could be imposed for this offence is 5 year imprisonment.

4. Tariffs vary the gravity and nature of these offences. In RT Penioni Rokota v State HAA 68/02S Shameem J held that "Sentence for indecent assault range from 12 months imprisonments to 4 years. The gravity of the offence would determine the starting point for the sentence."...A non custodial sentence will only be appropriate in cases where the ages of victim and the accused are similar and assault of a non penetrative and fleeting type"

Aggravating Factors of the offence

5. Following facts were revealed by the summary of facts placed before the court and will be considered as aggravating factors.

- Serious breach of trust

-act against the societal, religious and traditional rules

- took deliberate advantage of the victim's naivety and trust

-lack of responsibility

-age gap with the victim, the accused was 37 years and victim was 11 years

Mitigating Factors

6- You are a first offender and have previous good character. You said you are 38 years, married with 3 children, Security guard by profession. You earn 1$30 per week. You said still you are a first offender and asked court's forgiveness and leniency in this case. You ask non custodial sentence. You said you are the sole bread winner of the family and ask second chance. You said you are not living with the complainant and reconciled with complainant. It is to be noted this is not a reconcilable charge. But, I note the victim has written two letters to the DPP and to the court stating that she desired to withdraw her complaint against the accused Iowane Valueuto. This case has not decided on merits. In that scenario the accused wished to plead guilty and asked non custodial sentence. It is sure the accused act is against the society and it cannot be withdrawn by the victim. It is not clear why the DPP had not taken the victim's request as they normally act in other requests, similar types of cases, probably the gravity of the offence. At the time of taking plea the Counsel for the DPP was present, but has not shown that they seek deterrent sentence in this matter, but they filed sentencing submission indicating that they insist deterrent sentence. It seems to me that State is expecting deterrent sentencing according to guideline judgements as they rely on. This court admits that the behaviour of the accused cannot be condoned whatsoever. But victim has chosen to withdraw her complaint. If victim refused to give evidence in the trial what would be the outcome of this case. Off course she is a compellable witness but if she refused or lied to court what would be the situation. This case is hanging over since 2007. In the light of these circumstances this court accepted the plea of guilty of the accused and indicated that non custodial sentence could be given if he pleads. It is to be noted that plea bargaining by the court is permitted although sentence bargaining is not permitted by the parties in commonwealth and common law jurisdictions. The trial judge has sole discretions to pass the sentence under attended circumstances. (See Attorney General v J.S. Uluwaduge [1995] 1 Sri Lanka Law Reports 157 per Justice D.P.S. Gunesekera). In Similar Jurisdiction in Attorney General v Mendis [1995] 1 Sri Lanka Law Reports 138,Justice Gunesekera articulated, in sentencing,"the trial judge should not surrender his sacred right and duty to any other". These principles and guidelines are persuasive to me.

7. I select 2 years as the starting point. You pleaded guilty for the charge without going to the trial. Therefore, you are entitled for reduction of your sentence. Normally, exercising court's discretion, superior courts have followed 1/3 reduction for early plea. (as set out in Veretariki Vetaukula vs The State, High Court Crim App Case No: HAA057/07, followed in Hem Dutt vs The State, FCA Crim App Case No: AAU 0066 of 2005 and Aliki Vilimoni vs State, FJHC 12; HAA 131-132, 2007. ),. I reduce 6 months and sentence is 1 year 6 months. For aggravating fact I increase 1 year and your sentence is now 2 years and 6 months. You saved court's time and resources. Despite Pw1 has withdrawn the complainant two times you opted to plead guilty to the charge. Therefore I reduce 6 months. Your actual sentence is 2 years imprisonments.

8. In this scenario, as court indicated, should I impose you a custodial sentence in this case? Or Should I suspend it? I note that you are a first offender. I consider decided cases in this regard.

9. In Prasad v The State [1994] FJHC 132; Haa0032j.94s (30 September19994) S W Kepa J enunciated that the fact that Appellants are first offs ought to beto be a very strong mitigating factor in their favour. A prison sentence ought to be the last resort after the court has explored and exhausted all other alternative sentence. (Emze is mine)

10. In Prasad v State [1te [1994] FJCA 19; Aau0023u.93s (24 May 1994), Fiji Court of Appeal held that ".... Courts ought to bend backwards to avoid immediate custodial sentence for first offenders."

11. It has been noted in Prasad v The State [1994] FJHC 132 (Supra) that criminologists recognise t prison sentence should be the last resort especially where a fiffender is c;is conc concerned u thss the charge is very serious or the offender is dangerous and imprisonment is called for in the public interest or in the interest of the offender himsb>. (size is mine).

12. Singh v The StateState [2000] FJHC 115; Haa0079j.2000s (26 October 2000) Shameem J went on saying;

"However as a general rule, leniency is shown to first offenders, young offenders, and offenders who plead guilty and express remorse. I believe that in this case, every effort should have been made to keep four of the Appellants out of prison. They were first offenders, they were only 18 years old, and they pleaded guilty on being brought to court. Although the 1st Appellant was not 18 years old, he was a first offender and this offence was clearly an aberration during what appears to be an otherwise blameless life."

13. Nariva v The State [2006] FJHC 6; HAA0148J.2005S (9 February 2006) Shammem J again stressed;

"The courts must always make every effort to keep young first offenders out of prison. Prisons do not always rehabilitate the young offender. Non-custodial measures should be carefully explored first to assess whether the offender would acquire accountability and a sense of responsibility from such measures in preference to imprisonment."

14. You are not young, but have a large family. You are a first offender. If you sentenced to prison term your family will be punished indirectly. Actually this is hard case to sentence. You should be shamed and your act can not be compromised whatsoever. In this legal backdrop, summary of facts and your mitigation and the nature of offence, I opt to give a suspended sentence. Your two years sentence is suspended for 5 years. In addition you pay $ 250 as compensation to the victim. You are given 3 months to pay this compensation.

15. You, Iowane Valeuto, are sentenced to 2 years imprisonment. Sentence is suspended for 5 years. In addition you pay $250 as compensation, in default 25 days in imprisonment.

16. Nature of suspended sentence is explained and copy of this sentence is given to the accused.

17. 28 days to appeal.

On 24th May 2011 at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate