DPP v Goundar [2013] FJMC 231; Criminal Case 517.2010 (5 June 2013)

IN THE MAGISTRATE'S COURT AT NASINU

Criminal Case No. 517/2010

DPP

-v-

RAJENDRA GOUNDAR

Mr. Meli Vosawale, State Counsel for the DPP
Mr. Mehboob Raza for the accused

SENTENCE

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

AMENDED CHARGE:

Statement of Offence [a]

INDECENT ASSAULT: Contrary to Section 212 (1) of the Crimes Decree No. 44 of 2009.

Particulars of Offence [b]

RAJENDRA GOUNDAR on the 12th day of May 2010 at Narere in the Central Division unlawfully and indecently assaulted a girl namely Sereana Vudi.

Initially you were charged for rape. DPP amended charge in the High Court; on 04th June 2012 the case was remitted to this court. I pleaded guilty to the amended charge. 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. Summary of facts, which you had admitted, can be reproduced as follows; On the morning of the 12th of May 2010, Sereana Vudi (hereinafter referred to as the complainant) asked for 50 cents from her father to buy a second hand girl's top displayed at the accused's shop. When she was given the money, she headed to the shop to purchase the said top from the shop. Upon entering the shop, the complainant saw Rajendra Goundar (hereinafter referred to as the accused) behind the cash till, she then made her way to where the attractive top was, the accused approached the complainant and tried to fit on her – whilst doing so, the accused tried to fondle with the complainant's nipples, the complainant began to walk away. Later, the accused told the complainant that there were other good clothes in a room which were selling for 50 cents – the complainant made her way to this room where bulks of clothes were on the floor, she began looking at each clothes, just then, the accused walked into the room and told the complaint to take off her shirt to which the complainant refused, then the accused drew closer to the complainant and forcefully pulled her white skirt together with her pink panty down to her knee. The complainant then felt the accused touch the outer part of her vagina. There were slight redness to the left side of inner thigh just about 2cm lateral of vaginal opening, no bleeding noted, membrane is intact, no discharge and therefore there is no sign of digital penetration.

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

212. — (1) A person commits a summary offence if he or she unlawfully and indecently assaults any other person.

Penalty — Imprisonment for five years.

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"

5. There are fairly age gap in victim and you. I treat this as aggravating factor.

6- DPP Counsel has made sentencing submissions and victim impact assessment report. Your Counsel has made useful oral and written mitigation to this court and I am mindful of those. You are 46 years, married with 3 kids and have impeccable record. Because of this incident you had to leave the place you were living. Now you settled in Tavua with your brother. You were shop keep but now farmer and part time fisherman. You earn $100 to $120 per week. You co operated with the police. You are remorseful of you action. You brought disrepute to your family. You have learnt bitter lesson. You ask non custodial sentence as you are a first offender. In oral submission, your counsel stressed the injuries on vaginal area of the victim due to a disease ( Erythema) and in the victim impact statement itself shows she is having rashes in thighs (Paragraph 2A). You are ready to pay compensation.

7. Section 4(2) provides; "In sentencing offenders a court must have regard to:—

(a) the maximum penalty prescribed for the offence;

(b) current sentencing practice and the terms of any applicable guideline judgment;

(c) the nature and gravity of the particular offence;

(d) the offender's culpability and degree of responsibility for the offence;

(e) the impact of the offence on any victim of the offence and the injury, loss or damage resulting from the offence;

(f) whether the offender pleaded guilty to the offence, and if so, the stage in the proceedings at which the offender did so or indicated an intention to do so;

(g) the conduct of the offender during the trial as an indication of remorse or the lack of remorse;

(h) any action taken by the offender to make restitution for the injury, loss or damage arising from the offence, including his or her willingness to comply with any order for restitution that a court may consider under this Decree;

(i) the offender's previous character;

(j) the presence of any aggravating or mitigating factor concerning the offender or any other circumstance relevant to the commission of the offence; and

(k) any matter stated in this Decree as being grounds for applying a particular sentencing option."

8. Considering the above law and facts I pick 18 months and I increase it from 6 months for aggravating factor. Now your sentence is 2 years. I reduce 6 months for your plea and mitigation. Your Actual sentence is 18 months imprisonment.

9. You asked non custodial sentence. I now draw my attention to Section 15(3) of SENTENCING AND PENALTIES DECREE 2009 no: 42 of 2009, the main object of the Sentencing.

"As a general principle of sentencing, a court may not impose a more serious sentence unless it is satisfied that a lesser or alternative sentence will not meet the objectives of sentencing stated in section 4, and sentences of imprisonment should be regarded as the sanction of last resort taking into account all matters stated in this Part."

10. In Prasad v The State [1994] FJHC 132; Haa0032j.94s (30 September19994) S W Kepa J enunciated that the fact that Appellants are first offenders&#16ht 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 sentences. (Emze is mine)

11.p>11. In Prasad v State [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."

12. It has been noted in Prasad v The State [1994] FJHC 132 (Supra) that criminologists recognise that aon sentence should be the last resort especially where a first oer is conceronceroncerned unless 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 himself

13. According to facts the vict victim was not physically harmed by you and indecent assault was fleeting type. But being a child, the victim must have undergone a tremendous metal agony and it must be compensated. Given the due consideration to above legal principle and ready to pay compensation to the victim, I suspended it for 5 years. In Addition you pay $500 as compensation to the victim.

Summary: 18 months Imprisonment suspended for 5 years, in addition $500 compensation, In default 50 days in imprisonment.

14. Nature of suspended is explained. If you were found guilty to an offence during this operational period of 5 years, you will be prosecuted for breach of suspended sentence and you have to serve consecutive prison terms for both offences.

14. 28 days to appeal.

On 05th June 2013 at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate