State v Kumar - Sentence [2013] FJMC 304; Criminal Case 675.2012 (15 August 2013)

IN THE MAGISTRATE'S COURT OF FIJI
WESTERN DIVISION AT NADI
[CRIMINAL JURISDICTION]

CRIMINAL CASE NO.675/12

THE STATE

VS

RAJESH KUMAR

WPC Ana for prosecution
Ms Jiuta (LAC) for Accused
Date of Sentence: 15. 08. 2013

SENTENCE

1. RJESH KUMAR, following trial you were convicted of one count of indecent assault contrary to section 212 of the Crimes Decree, No. 44 of 2009.
   
2. On the evening of 24 March 2012 you applied ash on the body of the victim, fondled her breast and made her hug you tightly. On that day you went to the victim's house and asked where the victim was. Her father told that she was sleeping in her bedroom as she was sick and having nightmare. You then told her father that you can treat her. He believed you and agreed for treatment. You wanted to treat the victim in the absence of her father otherwise her father will be affected. Afterwards you took the victim to the bed room, made her undressed and committed the offence. This happened for about 10-15 minutes.
   
3. Breach of trust of the victim (she regarded you as her uncle), age different between the victim and you. The victim was 14 years old at that time, sexual abuse of a child and introducing a child to sexual orientation and posing as healer of diseases aggravated the offending.
   
4. Mitigating factors were that your previous good character and remorse.
   
5. As your personal circumstances, your counsel stated that you are 39 years old, married with two children and working. Although you are not preaching you are a qualified preacher. You are looking after your family and seeking forgiveness and leniency.
   
6. Indecent assault carries a maximum penalty of imprisonment of five (5) years under the Crimes Decree.
   
7. "The tariff for this offence ranges between 12 months imprisonment to 4 years. The gravity of the offence would 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 other weapon or implements were used and the length of time over which the assaults were perpetrated, all reflect on the gravity of the offence. Mitigating factors might be the prompt plea of guilty which saves the victim the trauma of giving evidence. These are the general principles which affect sentencing under section 154 Penal Code (similar to section 212 Crimes Decree). Generally, the sentence will fall within the tariff although in particular serious cases a 5 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 guidelines than these", per Shameem, J in Rt Penioni Rokota v State HAA 68/02S.
   
8. I therefore, taking all into my account, in your case would pick 2 years imprisonment as my starting point. Add another year to reflect the aforesaid aggravating features making interim total to 3 years. I decrease the sentence to 2 years 2 months to reflect your mitigating factors hence your final sentence is 2 years 2 months' imprisonment.
   
9. The only purpose for which sentencing may imposed by a court, pursuant to section 4.-(1), are:
   
   • (a) To punish offenders to an extent and in a manner which is just in all the circumstances;
   • (b) To protect the community from offenders;
   • (c) To deter offenders or other persons from committing offences of the same or similar nature;
   • (d) To establish conditions so that rehabilitation of offenders may be promoted or facilitated;
   • (e) To signify that the court and community denounce the commission of such offences; or
   • (f) Any combination of these purposes.
     
10. The indecent assault had taken place on a 14 years old victim at her home under the pretext of healing her disease. This reflected on the gravity of the offence. Unfortunately, custodial sentence is warranted by the nature of offending. I therefore decline to suspend the sentence. You are to be imprisoned for 2 years and 2 months.
    
11. I note that in pursuance of section 18.-(1) of the Sentencing and Penalties Decree when a court sentences an offender to be imprisoned for life or a term of 2 years or more the court must fix a period during which the offender is not eligible to be released on parole. In your case I fix 7 months as non-parole period which means you will be eligible for parole after serving 7 months of your sentence.
    
12. You have twenty eight (28) days to appeal.
    

Order

13. RAJESH KUMAR, You are hereby sentenced to two (2) years and two (2) months imprisonment without non-parole period of seven (7) months. You will be eligible for parole after serving seven (7) months of your sentence.
    

At Nadi this 15th day of August 2013

..................................................
M H Mohamed Ajmeer
Resident Magistrate