State v Faiyum [2017] FJMC 111; Criminal Case 70.2013 (18 September 2017)

IN THE MAGISTRATES’ COURT OF FIJI

AT LEVUKA

Criminal Case No: - 70/2013

STATE

V

MOHAMMED FAIYUM

For the Prosecution : - PC Shailend

For the Accused : - Ms.Arthi Swamy

Date of Sentence : 18^th of September 2017

(Name of the victim is suppressed and identified in this sentence as Ms. ED)

SENTENCE

1. MOHAMMED FAIYUM, you were charged with one count of Indecent Assault contrary to section 212(1) of the Crimes Act No 44 of 2009.
2. You pleaded not guilty wherefore this was fixed for hearing on 13^th September 2017. But on that day you through your counsel informed that you wanted to change your plea and pleaded guilty for this charge.
3. You also admitted the following summary of facts presented by the prosecution :

On the 3rd of July, 2011 at about 1800hrs, Ms.ED (A-1), 14 yrs, student of Naiviteitei, Bureta reported at the station that one MOHAMMED FAIYUN (B-1), 26yrs, mechanic for Standard Conrete residing at Mulomulo Cemetry road, Nadi indecently assaulted (A-1) by touching her breast inside a ten wheeler truck somewhere between Navuloa and Naiviteitei, Bureta village.

On the above mention date, time and place, (A-1) with one of her cousin plan to walk back to Bureta after the monthly church service for the circuit of Bureta which was held at Navuloa village. On their way back, they met the ten wheeler truck than accused stopped for them. (A-1) hopped into the truck whereby her cousin sat in front with the driver than (A-1) sat behind the driver’s seat with (B-1). On the way, then (B-1) asked (A-1) if he can touch her. (A-1) replied by saying “NO’. (A-1) got a shock when she felt (B-1)’s hand touching her breast. (PW-1) pushed (B-1)’s hand away but (B-1) kept on touching her breast. Again (B-1) than asked (PW-1) if he can kiss her. (PW-1) replied by telling (B-1) that she do not know how to do it. (B-1) than pulled (A-1)’s face to him than forcefully kissed (A-1) on her mouth. Accused kept on doing this until they reached Bureta.

Upon report received at the Station PC 4503 Vonevate (C-1) was appointed the Investigating Officer. Enquiry was made by (C-1), than information received that accused is back at this place in Mulomulo. On 14/5/13, then (C-1) arrested (B-1), interview him under caution whereby he denied the allegation, formerly charged to appear in custody at Nausori Magistrate Court today 16/5/13.

4. I am satisfied that you plea was voluntarily and unequivocal. Accordingly I convict you for this offence.
5. The maximum penalty Indecent Assault under the Crimes Act is 05 years imprisonment.
6. The tariff was discussed in RT Penioni Rokota v State HAA 68/02S where her Ladyship Justice Shameem held :

"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. In Laisiasa Koroivuki v the State ( Criminal Appeal AAU 0018 of 2010) his Lordship Justice Goundar discussed the guiding principles for determining the starting point in sentencing and observed :

"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 time. 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".

8. Considering the above judicial precedents and based on an objective seriousness of the offence, I select 16 months as the starting point for your sentence.
9. At the time of offending the victim was 14 years old. Further at that time you were 26 years old making significant age difference between the parties. I consider these as aggravating factors and add 10 months to reach 26 months imprisonment.
10. In mitigation the learned counsel for the accused submitted the following grounds:
    1. Married with 2 children;
    2. Reconciled ;
    100. First offender;
    4. Remorseful.
11. In Anand Abhay Raj v State [2014] FJSC 12; CAV 003 of 2014) his Lordship Chief Justice Anthony Gates held that in Rape cases little weight can be given for personal mitigating factors of an accused.
12. In my view this applies to other sexual offences also. Further this is not an offence that can be reconciled under the Criminal Procedure Act. But I give substantial weight to your good behavior and deduct 04 months to reach 22 months imprisonment.
13. You did not plead guilty at the first available opportunity. Hence in my view you are not entitle for 1/3 deduction that would be given for the early guilty plea. But there need to be some credit for saving the victim even at the last minute from giving evidence in court and subject to cross-examination. For this I deduct 04 months to reach 18 months imprisonment.
14. Now I have to consider whether to suspend your sentence as requested by your counsel in her mitigation submission.
15. MOHAMMED FAIYUM, the victim who was 14 years old got in to your truck trusting you and the driver to drop her in home. But you exploited her vulnerability by subjecting her to your lust. You touched her breasts and forcefully kissed her till the vehicle reached the destination. You were aware that the victim was helpless to resist your advances in the truck and used that to your advantage. Your behavior need to be denounced with a custodial sentence even though this may bring some misery to your young children.
16. Accordingly I sentenced you to 18 months imprisonment for this charge.
17. 28 days to appeal.

Shageeth Somaratne

Resident Magistrate