State v Penjueli [2012] FJMC 90; Criminal Case 668.10 (10 May 2012)

IN THE MAGISTRATE’S COURT AT LAUTOKA

Criminal Case No 668/10

BETWEEN

THE STATE

AND

IAN ANDREW PENJUELI

SENTENCE

1. You, Ian Andrew Penjueli are to be sentenced upon being found guilty for three counts of indecent assault. You were convicted after three days of trial for one count of indecent assault contrary to Section 154(1) of the Penal Code and for two counts of indecent assault contrary to Section 212(1) of the Crimes Decree No 44 of 2009.
   
2. Under the Penal Code as well as under the Crimes Decree the maximum punishment for indecent assault is imprisonment for five years.
   
3. It was revealed during the trial that you indecently assaulted the victim in three occasions during the period from April 2004 to June 2010. In April 2004 you fondled her breasts, touched her stomach and her private parts whilst she was sleeping. In April 2010 you hugged the victim from behind and pressed her breasts. In June 2010 you touched her breasts and her private parts whilst she was sleeping. The victim said that she did not complain about these incidents right away as she thought no body would believe her since you were considered as a part of her family. She said you were like a father to her. The Complainant was 16 years when she gave evidence in this case in May 2011.
   
4. In this case I have observed the following aggravating circumstances;
   
   1. The victim was 9 years when you first committed the offence. The victim is now 17 years.
   2. You are 36 years old and there is a big age gap between the victim and you.
   100. You are her uncle.
   4. You betrayed the trust between uncle and niece.
   5. You have caused immense mental trauma to her.
      
5. In mitigation your counsel filed written submissions along with several letters from persons known to you. It has been brought to the attention of the Court that;
   
   1. You have three children who are still schooling.
   2. You were the solo parent for a long time when the mother abandoned the children.
   100. You got divorced whilst this case was on going.
   4. You married another lady in February 2012 after dating her for three years and you decided to do so for the sake of your children and for the commitment to one another.
   5. The children have come to know and accept their step mother as one of their own.
   6. You have form 6 level of education.
      
6. Further two letters were tendered from class teachers of two of your children to confirm that you take well care of your children and they perform well at school. The Secretary of St Thomas Primary school has tendered a letter confirming that you have supported the children in their education. Further a Priest from Our lady of perpetual help parish has given a letter to confirm that you are a person of good character.
   
7. Along with the written mitigation two letters from two of your children who are 9 years and 11 years were also tendered. They have pleaded that you may not be sent to jail and that they will be upset if something happens to you. However it is doubtful as to how ethical and civilized would it be for you to get your small children to plead that you may not be sent to jail, specially when you are convicted for a sexual offence against another child. It seems more like a coward act to seek immunity by putting forward your children who have no idea whatsoever of what you have committed.
   
8. Be that as it may, I have considered your personal circumstances and specially the plight of your children. Also I have given due regard to the representations made on your good character.
   
9. However it should be noted that I did not observe any remorse expressed on your behalf. Further I did not see any attempt for apology or reparation except the submissions on your personal circumstances.
   
10. At this point it would be pertinent to reproduce the guide lines set out by Justice Shameem in Rokota vs State Criminal Appeal No. HAA0068 of 2002 in sentencing for indecent assault;
    

"From these cases a number of principles emerge. 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 reflects 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."

11. Further 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
       
12. Undoubtedly you have committed pervert acts which would be looked at in abhorrence by any civilized society. You breached the trust of the victim who is your niece and took advantage of your position as a close relative of the family. The sentence imposed by a Court should signify that the Court and the community denounce this type of pervert acts. The tariff for this offence ranges from 12 months imprisonment to four years imprisonment and in this case I pick my starting point as eighteen months for each count. For the aggravating factors I enhance the sentences for each count by 12 months. For the mitigatory factors I reduce each sentence by 12 months.
    
13. You are a first offender. However at this point I would like quote Justice Nawana in State v Vilikesa and another HAC 81of 2010 as follows;
    

"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"

14. In any event having considered your personal circumstances I decide to partially suspend your sentences pursuant to Section 26(1) of the Sentencing and Penalties Decree. Accordingly you will serve a part of the sentence imposed on you and the balance will be suspended for a specified period. If you commit any offence punishable by imprisonment during the operational period of the suspended sentence you will be committing an offence punishable under section 28(1) read with Section 28(4) of the Sentencing and Penalties Decree.
    
15. Having explained the purpose, effect and the consequences pursuant to Section 26(3) of the Sentencing and Penalties Decree I impose the sentences in the following manner;
    

First Count- I impose eighteen months imprisonment on you. You should serve nine months out of that and the balance nine months imprisonment is suspended for five years.

Second Count-I impose eighteen months imprisonment on you. You should serve nine months out of that and the balance nine months imprisonment is suspended for five years.

Third Count- I impose eighteen months imprisonment on you. You should serve nine months out of that and the balance nine months imprisonment is suspended for five years.

16. Having considered the circumstances of the case and other mitigatory factors I order that the nine months imprisonments ordered to be served by you in respect of each count should run concurrently. Accordingly you should serve a total of nine months and the balance imprisonments are suspended for five years.
    

28 days to appeal.

Rangajeeva Wimalasena
Resident Magistrate
Lautoka

10.05.2012