State v Delainarocake - Sentence [2017] FJMC 71; Criminal Case 34.2017 (19 May 2017)

IN THE MAGISTRATES’ COURT OF FIJI

AT NAUSORI

Criminal Case No: - 34/2017

STATE

V

INOKE DELAINAROCAKE

For the Prosecution : - Sgt.Rao

The Accused : - In person

Date of Sentence : 19^th of May 2017

SENTENCE

1. INOKE DELAINAROCAKE, you were charged with two count of Indecent Assault contrary to section 212(1) of the Crimes Act and two counts of Criminal Trespass contrary to section 387(4) (a) of the Crimes Act.
2. You pleaded guilty this morning for all the counts and also admitted the summary of facts presented by the prosecution. According to facts on 16/05/2017 whilst the victim was sleeping with her kids in her home, you forcefully opened the door and entered in to the home and touched her thigh. You repeated the same thing on next night.
3. I am satisfied about your plea was voluntarily and unequivocal. Accordingly I convict you for these offences.
4. The maximum penalty for Indecent Assault under the Crimes Act is 05 years imprisonment.
5. 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"

6. The penalty for Criminal Trespass is 01 year imprisonment. The tariff for the offence of criminal trespass is mentioned as 1 – 9 months (Ravuwai v State [2007] FJ HC55; Buli v State [2011] FJHC 696; HAA 025.2011 (3 November 2011), State v Basilio Nukumata [2011] FJHC 109; HAC 184.2010) .
7. 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".

8. Considering the nature and gravity of offending and your culpability, I select 24 months as the starting point for each count of Indecent Assault.
9. These acts were committed in the night whilst the victim was sleeping with her children. I consider these as aggravating factors and add 06 months to reach 30 months.
10. In mitigation it was shown that you are a 20 years old, first offender and seeking forgiveness. For these I deduct 06 months to reach 24 months imprisonment for each count of Indecent Assault.
11. You pleaded guilty at the first available opportunity and for that I deduct 1/3 to reach 18 months imprisonment.
12. Considering all the factors, I sentenced you to 06 months for each count of Criminal Trespass.
13. Your final sentence is as follows:

1^st count – Criminal Trespass – 06 months imprisonment

2^nd count-Indecent Assault – 18 months imprisonment

3^rd count-Criminal Trespass- 06 months imprisonment

4^th count- Indecent Assault – 18 months imprisonment

14. Considering totality principle I order these to be concurrent.
15. Now I have to consider whether to suspend your sentence pursuant to section 26(2) (b) of the Sentencing and Penalties Act.
16. You are a young and a first offender. You pleaded guilty early and saved the victim from giving evidence in the court. Further these are non-penetrative type assaults. Hence I find the main purpose of this sentence is to allow you the chance to rehabilitate.
17. Accordingly I suspend your 18 months imprisonment to 02 years.
18. If you commit any offences during next 02 years you can be charge under section 28 of the Sentencing and Penalties Act.
19. 28 days to appeal.

Shageeth Somaratne

Resident Magistrate