State v Balekana [2013] FJMC 330; Criminal Case 55.2013 (3 September 2013)

IN THE MAGISTRATES COURT OF FIJI
AT LEVUKA

Criminal Case No: - 55/2013

STATE

V

JIUTA QESA BALEKANA

For Prosecution : - Sgt. Villsoni
Accused : - Ms. Priya Chand from the Legal Aid

SENTENCE

1. JIUTA QESA BALEKANA, you were charged with three counts of Indecent Assault contrary to section 212(1) of the Crime Decree No 44 of 2009. Since the victim is a minor her name is suppressed and identified as XY.
   
2. You waived right to counsel and pleaded guilty for the three counts before my sister magistrate Ms. George. When this came before me the learned counsel from the Legal Aid and you had no objection for me to give the sentence.
   
3. Therefore your plea was taken again on 02/09/2013 and you pleaded guilty again for all the counts. You also admitted the summary of facts.
   
4. According to the summary of facts on 18, 19 and 20 March you pulled down the pants of XY and touched her vagina.
   
5. I am satisfied you fully understand the legal effects of your plea. Therefore I convict you for these three counts.
   

LAW AND TARIFF

6. Maximum penalty for this offence is 05 years imprisonment. 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"
   
7. Upon considering the summary of facts in this case I select 12 months imprisonment as the starting point for each count.
   

Aggravating factors

8. The victim is your first cousin's daughter. You breached the trust. She was 03 years old and vulnerable person. For these I add 10 months to reach 22 months for each count.

Mitigating factors

9. I consider following mitigating factors which were brought before me in the mitigation submission filed by the learned counsel.
   
   1. 41 years old
   2. Single
   3. Seeking forgiveness from court
   4. First offender
   5. Supports family.
      
10. I deduct 06 months for the above mitigating factors to reach the period of 16 months.
    
11. Since you have pleaded guilty in the first available instance you are entitled for a reduction of 1/3 of the total period of imprisonment. (Akili Vilimone v State). There by your sentence stands for 10 months.
    
12. I am mindful that under section 26 (2) (b) of the Sentencing and Penalties Decree I can suspend a sentence which is below two years.
    
13. The learned counsel from the Legal Aid asked for a non custodial sentence. You have committed these on her three occasions . At that time she was 03 years old and was vulnerable. From your mitigating factors also I do not see any reason to suspend the sentence. Also the sentence would be a message to others who try to commit offences like these against the children in this country.
    
14. Accordingly I decline to suspend your sentence. You are sentenced to 10 months imprisonment for each count to be served concurrently.
    
15. Also this Court grants a permanent domestic violence restraining order with standard non molestation conditions in favor of the victim.
    
16. 28 days to appeal
    

03/09/2013

H.S.P.Somaratne
Resident Magistrate,