State v Ali [2013] FJMC 357; Criminal Case 542.2011 (3 October 2013)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA

Criminal Case No: - 542/2011

STATE

V

FAIAZ ALI

For Prosecution : - Cpl. Reddy
Accused : - Mr. Samad

SENTENCE

1. FAIAZ ALI, you were convicted by this Court after a trial for one count of Indecent Assault contrary to section 154(1) of the Penal Code.
   
2. It was revealed in the trial that on 18th October 2004 at Samabula in the Central Division you indecently assaulted Adi Kacaraanini.
   
3. The maximum penalty for this offence under the Penal Code is 05 years imprisonment.
   
4. The tariff was discussed in RT Penioni Rokota v State HAA 68/02S where Her Ladyship Justice Shameem 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. At the time she was going with you for a field trip in your vehicle. You took advantage of that and committed this offence. She was 18 years old and vulnerable at that time. These will be considered as aggravating this offence.
   
6. Your counsel has filed mitigating submission on your behalf and from this I would consider following as mitigating factors.
   
   1. 34 years old
   2. Married with 02 children.
   3. First offender.
   4. Remorseful.
      
7. I commence your sentence from 18 months and add 10 months for aggravating factors. Deduct 06 months for mitigating factors to reach 22 months imprisonment as your final sentence.
   
8. I am mindful that in pursuant to section 26(2) (b) of the Sentencing and Penalties Decree I can suspend a sentence below 02 years.
   
9. This incident happened in 2004 and after that you have not re offended. This shows that you have learned a lesson from this. Also there is not much age difference between the parties and this incident falls in to the category of non penetrative type. Therefore this Court is prepared to give you a chance to reform.
   
10. Accordingly for the offence of Indecent Assault contrary to section 154(1) of the Penal Code you are sentenced to 22 months imprisonment and this will be suspended for 03 years.
    
11. If you commit any offence punishable by prison sentence during the next 03 years you can be charged under section 28 of the Sentencing and Penalties Decree.
    
12. Also as deterrence for you as well as future offenders I order you to pay $500.00 as compensation to the victim in this case.
    
13. 28 days to appeal.
    

03rd October 2013

H.S.P.Somaratne
Resident Magistrate