State v Qalulu [2016] FJMC 239; Criminal Case 118 of 2016 (21 December 2016)

IN THE MAGISTRATES’ COURT OF FIJI

AT SUVA

Criminal Case No: - 118/2016

STATE

V

JEMESA GAUNAVINAKA QALULU
For the Prosecution: Inspector Rajesh
For the Accused: Mr.P.Gade (LAC)
Date of Sentence : 21^st of December 2016

SENTENCE

1. JEMESA GAUNAVINAKA QALULU, you were convicted after a trial to one count of Indecent Assault contrary to section 212(1) of the Crimes Decree No 44 of 2009.
2. It was proved beyond reasonable doubt that on 15^th January 2016 you Indecently Assaulted Ms. NM (name suppressed) by touching her breast.
3. The maximum penalty for this offence under the Crimes Decree is 05 years imprisonment.
4. In Ratu Penioni Rokota v State Criminal Appeal No.HAA 0068 of 2002 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. In Koroivuki v. State [2013] FJCA 15; AAU 0018.2010 (5 March 2013) his Lordship Justice Goundar discussed about selecting the starting point of a sentence in the following manner:

"In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this stage. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff. If the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range."

6. Considering the objective seriousness and your culpability, I select 20 months as the starting point for this sentence.
7. I consider following as aggravating factors :
   1. The victim is your niece and committing this offence you breached trust.
   2. The victim was 12 years old ;
   100. There was significant age difference between the parties;
   4. This also falls in to the category of domestic violence offence.
8. For these aggravating factors I add 15 months imprisonment to reach 35 months imprisonment.
9. In the mitigation submission filed by your counsel following were submitted as mitigating factors.
   1. 39 years old;
   2. First offender ;
   3. Married with a 14 years old son;
10. Even in your mitigation you still maintain that you did not touch her breast and only pushed her away. This means still you are not remorseful of your behavior.
11. But for other mitigating factors I deduct 05 months to reach 30 months imprisonment.
12. You were remanded for sentence for only 01 week and considering this insignificant period, I would not deduct that from your final sentence pursuant to section 24 of the Sentencing and Penalties Decree.
13. It is regrettable that in sexual offences against the children, most of the perpetrators are related to the victims. Hence the court has a duty to pass severe sentences to denounce the behavior of the offenders and to protect the children of this country.
14. JEMESA GAUNAVINAKA QALULU, I sentenced you to 30 months imprisonment for the offence of Indecent Assault contrary to section 212(1) of the Crimes Decree with a non-parole period of 20 months imprisonment.
15. For the safety of the victim I also grant a permanent DVRO with standard non-molestation order.
16. 28 days to appeal.

Shageeth Somaratne

Resident Magistrate