State v Daugunu [2017] FJMC 51; Criminal Case 2009.2016 (18 April 2017)

IN THE MAGISTRATES’ COURT OF FIJI

AT SUVA

Criminal Case No: - 2009 /2016

STATE

V

KAMINIELI DAUGUNU

For the Prosecution : Cpl Shaw

For the Accused : Mr. Tuicolo (LAC)

Date of Judgment : 13^th of April 2017

Date of Sentence : 18^th of April 2017

SENTENCE

1. KAMINIELI DAUGUNU , you were convicted after a hearing to one count of Indecent Assault contrary to section 212(1) of the Crimes Decree No 44 of 2009.
2. During the hearing the following facts were proved by the prosecution. On 01st December 2016 the complainant came with her husband to Nabua market in her vehicle. You approached her and asked her about buying coconuts. During that conversation you attempted to touch her breast whist she was in the driver seat. Even though you failed in your first attempt the second and third time you squeezed her breast.
3. The maximum penalty for this offence under the Crimes Decree is 05 years imprisonment.
   4. 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"
5. In Laisiasa Koroivuki v the State ( Criminal Appeal AAU 0018 of 2010) the Fiji Court of Appeal 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".
6. Considering the gravity of offending, I select 24 months as the starting point for your sentence.
7. I do not find any aggravating factors and in mitigation your counsel submitted that you are 32 years old, supporting the family and first offender. For these mitigating factors I deduct 06 months to reach 18 months imprisonment.
8. Now I have to consider whether to suspend your sentence.
9. A court can consider suspending the sentence for this kind of offence only when the age of parties are similar and assault is of non-penetrative and fleeting type. Even though it appears that you are similar age to the victim, I do not consider this as a fleeting type of assault. Whilst the victim was inside the vehicle you approached her and tried to touch her breast. Even though you failed your first attempt, the second and third time you grabbed her breast whilst she was helpless in the driver seat. Your behavior on that day needs to be denounced. Further women in this country should be able to attend to their daily activities without being subject to sexual violence in whatever form. Hence a custodial sentence is warranted to fulfill these objectives.
10. KAMINIELI DAUGUNU , I sentence you to 18 months imprisonment for this charge.
11. 28 days to appeal.

Shageeth Somaratne

Resident Magistrate