State v Bola - Sentence [2014] FJMC 82; Criminal Case 03.2011 (14 May 2014)

IN THE MAGISTRATE'S COURT AT SUVA
CRIMINAL DIVISION

Criminal Case No. 3 of 2011

The State

v

Osea Bola

For the State: Mr. Prakash
For the Accused: Mr. Maisamoa

SENTENCE

Osea Bola you have been convicted of 11 counts of Sexual Assault contrary to section 210 (1) (b) (i) and (2) of the Crimes Decree after a full trial.

At the time of the offending you held the position of bursar at Vunisea Secondary School and you were accorded by the students and the members of the community with the same respect as a school teacher. This is by virtue of the fact that you were a member of the staff at the school at the time in question.

The evidence which has convicted you has demonstrated that between the months of February 2010 and May 2011 you procured the 8 complainants, without their consent, to commit one or more act of gross indecency as follows: -

1. PW1 – Betero Seruvatu – you committed felatio on him and procured him to anally penetrate you
   
2. PW2 – Marisio Vuniwai – you procured him to anally penetrate you
   
3. PW3 – Josaia Vuiono – you committed felatio on him
   
4. PW4 – Suliasi Mei – you committed felatio on him
   
5. PW5 – Marika Baro – you committed felatio on him and procured him to anally penetrate you
   
6. PW6 – Filipe Tawanabalebale – you performed felatio on him and procured him to anally penetrate you
   
7. PW7 – Ilikimi Rakaso – you performed felatio on him
   
8. PW8 – Timoci Butoni – you performed felatio and procured him to anally penetrate you
   

You are a first offender and counsel has offered written mitigation on your behalf.

You are 35 years of age and you are unmarried. You currently reside at Cunningham Stage 1. You are currently unemployed as you were formerly employed as a bursar at Vunisea secondary School. You are originally from Kadavu.

The written mitigation describes you as a sissy and that you are attracted to men and that you want men to go out with you and that you are abnormal. These choices of words by your counsel do not do you any favours and would appear to perpetuate negative stereotypes about sexual orientation in describing you as abnormal. Notwithstanding the above the Court accepts that your sexual orientation compels you towards men and boys. You further submit that due to your sexual orientation any custodial term will be especially onerous on you as you will no doubt be marked out for special "attention" by the other inmates and that your life will essentially be ruined. No evidence has been provided to support this claim.

You further submit that you exercised your right to contest the charge against you and that you presented yourself to the police at the pre charge stage to be interviewed. Further you continued this cooperation by dutifully attending all court cases without fail.

You now wish to express your remorse for the embarrassment that you have caused to your family, to the school and the surrounding communities by your actions.

Your counsel accepts that the tariff for this offence ranges from 2 – 8 years imprisonment and that the maximum sentence for the section 210 (1) (b) (i) is ten years imprisonment. The maximum sentence for section 210 (2) is 14 years imprisonment.

In light of the above extenuating circumstances your counsel submits that the most appropriate sentence for you is a non custodial sentence.

The State has also filed sentencing submissions and confirms that the tariff for this offence ranges from 2 to 8 years imprisonment. This was established in the case of State –v- Laca [2012] FJHC 1414 and further confirmed in State –v- Kabaura [2014] FJHC 109 as well as State –v- Kivi [2014] FJHC 268.

The High Court has adopted the classification of sexual assault from the UK Legal Guidelines on Sentencing as follows: -

Category One (the most serious)

• Contact between the naked genitalia of the offender and naked genitalia, face or mouth of the victim
  

Category Two

(i) Contact between the naked genitalia of the offender and another part of the victim's body

(ii) Contact with the genitalia of the victim by the offender using part of his or her body other than the genitalia or an object

(iii) Contact between either the clothed genitalia of the victim by the offender using part of his or her body other than the genitalia or an object

Category Three

• Contact between either the clothed genitalia of the offender and the naked genitalia of the victim; or the naked genitalia of the offender and the clothed genitalia of the victim
  

The State offers the following as the factor which aggravated the offending: -

(a) The serious breach of trust in which you abused your position as a staff member to commit these offences; you exploited the fact that these boys were in need of money, food and entertainment to achieve your aims.

The mitigating factor in your favour is that no physical violence was used on any of the victims.

Since there are eleven counts – the State submits that in the circumstances an aggregate sentence pursuant to section 17 of the Sentencing and Penalties Decree would be appropriate with the proviso that the Court considers the totality principle to achieve a sentence that is commensurate with the offending.

By way of recommendation the State offers the following submissions: -

(i) The general principle of deterrence against school staff who are inclined to commit sexual offences against school students;

(ii) The general principles of deterrence against those who take advantage of boys and girls who are in their adolescence years;

(iii) Specific principles of deterrence against this particular Accused for the breach of trust and breadth of offending;

(iv) Reformative principles for this Accused that will allow him to reform from his offending.

In sentencing you the Court finds that major aggravating factor for these 11 counts is that you were in a position of trust in the school as a staff member and you abused this trust by sexually assaulting these 8 boys.

In your evidence you seem to suggest that these acts were consensual – quite forgetting that you were the authority figure and these acts were committed in and around the school compound.

From the evidence adduced at the trial your actions are tantamount to grooming – ingratiating yourself with these students and offering incentives to these students to achieve what you wanted.

The mitigating factors include the fact that no violence was used. In addition you are a first offender and a person of previous good conduct.

In sentencing you the Court is obliged to consider section 4 (1) and (2) of the Sentencing and Penalties Decree which provides: -

"Sentencing Guidelines

4.—(1) The only purposes for which sentencing may be imposed by a court 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 the community denounce the commission of such offences; or

(f) any combination of these purposes.

(2) 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."

As the 11 counts are of an identical offence – Sexual Assault – it is appropriate to impose an aggregate sentence on you.

Using the classification adopted by the High Court I classify your offending as falling within Category 2.

The nature of the offending lies in the median range of these types of offences.

In preparing an appropriate sentence for you the Court is mindful of the need to prepare a sentence that is not only commensurate with the offending but also a sentence that achieves the following aims: -

(a) To denounce and punish your criminal conduct;

(b) To ensure that there is a deterrent message for any likeminded offenders for instance people in authority over vulnerable groups such as students in a dormitory or hostel; and

(c) To arrive at a sentence that achieves the above aims while offering you the hope of rehabilitation.

In sentencing you I adopt a starting point of 4 years imprisonment and I add 2 years for the aggravating factors outlined above. For the mitigating factor identified above I deduct your sentence by 1 year and I deduct a further 1 year for your previous good conduct as a first offender.

For this case you were remanded from 17th June 2011 to 18th July 2011 therefore this 1 month period will be deducted from your sentence.

This leaves you with an aggregate sentence of 3 years 11 month for each of the 11 counts. For the avoidance of doubt each of the 11 counts shall be served concurrently.

This sentence is over 2 years therefore there is no possibility of suspending the sentence – you shall serve this term of imprisonment in custody.

In light of your previous good conduct and your previous unblemished record I shall not impose a non parole period and I leave it to the authorities to determine whether you are benefiting from the rehabilitation programs available in the Correction Centre.
28 days to appeal

U. Ratuvili
Chief Magistrate

14th May 2014