State v Naucukidi [2012] FJMC 286; Criminal Case 1210.12 (25 October 2012)

IN THE MAGISTRATE'S COURT
AT SUVA
IN THE REPUBLIC OF FIJI ISLANDS

Criminal Case No: 1210/12

STATE

V

SIKELI NAUCUKIDI

Prosecution : Cpl Temesi, Police Prosecutor.
Accused : In Person.

SENTENCE
Introduction and the Charges

Sikeli Naucukidi you have pleaded guilty to the following 2 counts:

Count One

Statement of offence [a]

Indecent Assault: Contrary to Section 212 of the Crimes Decree Number 44 of 2009.

Particulars of Offence (b)

Sikeli Naucukidi on the 9th day of September, 2012 at Nabua in the Central Division, unlawfully and indecently assaulted Keresi Lewabuto.

Count Two

Statement of offence [a]

Indecent Assault: Contrary to Section 212 of the Crimes Decree Number 44 of 2009.

Particulars of Offence (b)

Sikeli Naucukidi on the 9th day of September, 2012 at Nabua in the Central Division, unlawfully and indecently assaulted Lusiana Tuiloma.

Statement of Facts and Submissions

You chose to defend the case yourself having being given the opportunity to get legal representation. You have admitted the statement of facts for each of the counts as read out by the prosecutor. You have given Mitigation which this Court has considered.

Maximum Sentences

The maximum sentences for Indecent Assault as per the Crimes Decree is 5 years imprisonment.

The Tariff

The tariff for "indecent assault" is a sentence between 1 to 4 years imprisonment. The more serious the indecent assault, the higher will be the sentence: see Ratu Penioni Rakota v The State, Criminal Appeal No. HAA 0068 of 2002S, High Court, Suva; Sikeli Nayate v The State, Criminal Appeal No. HAA 46 of 2008, High Court, Suva.

Justice Shameem giving guidance on the tariff for Indecent Assault casated in Rokotaokota v State (Supra) case:

"..........Sentences for indecent assault ranges f2 months imprismprisonment to 4 years. The gravity of the offence will determine the starting point for the sentence. The indecent assault of small childeflects octs 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 l of time over which the asse 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."

Starting Point, Mitigation, Aggravating factor
For each of the two counts this Court takes a starting Point of 18 months Imprisonment. For your guilty plea this Court gives 6 months discount. The Court has noted your mitigation and the time you have spent in custody and gives 2 months discount. This Court takes as aggravating factor the trust the ladies placed on you as a masseur and your breach of this trust. This Court increases your sentence by 2 months.
You are sentenced to 12 months imprisonment for each count. This Court finds that the offence you committed is not of the fleeting type as to warrant a non-custodial sentence. Furthermore, it must be noted that the message must go out that anyone who is disrespectful to another and for his/her sexual gratification sexually assaults another will get immediate custodial sentence.
You are sentenced to 12 months imprisonment for each count. The sentences are to be served concurrently.
28 days to appeal.

Chaitanya Lakshman

Resident Magistrate

25th October 2012