State v Matairavula - Sentence [2018] FJMC 75; Criminal Case 704 of 2016 (23 August 2018)

IN THE MAGISTRATES COURT OF FIJI
AT NAUSORI

Criminal Case No: - 704/2016

STATE

V

ASELI MATAIRAVULA

For the Prosecution: WPC Siteri

The accused: In person

Date of Judgment: 22^nd of August 2018

Date of Sentence : 23^rd of August 2018

(The name of the victim is suppressed and known as Mr.SR in this sentence)

SENTENCE

1. ASELI MATAIRAVULA, you were convicted after a hearing to one count of Sexual Assault contrary to section 210(1) of the Crimes Act No.44 of 2009(“Crimes Act”).
2. During the hearing the following facts were proved by the prosecution.
3. The victim, SR was 15 years old and on 29^th September 2016 was sent to the canteen by his mother to change some money. On the way back he met the accused who asked him about the parents. When he was about the leave that place the accused grabbed his pant, closed his mouth and put his right hand inside the anus of the victim. He committed this act number of times and it was painful to the victim. The accused let the victim only when his mother started calling him.
4. As mentioned in my judgment the facts in this case justify you to be charged for the Rape pursuant to section 207(1) (2) of the Crimes Act, but for some unknown reason the prosecution proceeds with this lesser charge.
5. Now you have been convicted for one count of Sexual Assault contrary to section 210(1) of the Crimes Act which provides :

“ An person commits an indictable offence (which is triable summarily) if he or she—

(a) unlawfully and indecently assaults another person;”

6. Section 210 (3) (b) of the Crimes Act states :

“ further, the offender is liable to a maximum penalty of life imprisonment if—

(b) for an offence defined in sub-section (1)(a), the indecent assault includes the person who is assaulted penetrating the offender’s vagina, vulva or anus to any extent with a thing or a part of the person’s body that is not a penis; or”

7. The evidence available to the prosecution would have allowed the prosecution to charge the accused for the aggravated sexual assault also as defined in Section 210(3), but they failed to consider about that even when this was revealed during the hearing.
8. In Devi v State [2018] FJHC 761; HAA30.2018 (10 August 2018) his Lordship Justice Goundar said :

“It is a settled principle that an offender cannot be punished for a more serious offence for which he or she had not been charged or convicted of (Vakalalabure v State [2006] FJSC8; CAV0003U.20045 (15 June 2006)).”

9. Hence even though I am satisfied that you have committed a serious offence I would sentence you only for this lesser charge of sexual assault which carries a maximum penalty of 10 years imprisonment. Tariff is 02 to 08 years imprisonment.
10. In State v. Laca [2012] FJHC 1414; HAC 252.2011 (14 November 2012), his Lordship Justice Madigan referring to the United Kingdom's Legal guidelines for Sentencing categorized sexual lt into 3 to 3 categories.

Category 1 (the most serious)

Contact between the naked genitalia of the offender and naked genitalia face or mouth of ictim

Catu>Category 2

(i) Contactntact 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 offender and the naked genitalia of the victim; or the naked genitalia of the offender and the clothed genitalia of the victim.

Category 3

Contact between parts of the offender's body (other than the genitalia) with part of the victim's body (other than the genitalia).

11. You penetrated the anus of the victim and this would not fall in to any of the above categories . This is to be expected as the offence you committed is more of an aggravated sexual assault contrary to section 210(3) (b) of the Crimes Act.
12. In Laisiasa Koroivuki v the State [2013] FJCA 15; AAU0018.2010 (5 March 2013) 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.
13. Considering the above judicial precedents and based on an objective seriousness of the offence, I select 04 years as the starting point for your sentence. This starting point is selected from the lower end of the tariff.
14. There are number of aggravating factors present in this case. The victim was 15 years old and a juvenile when this offence was committed. You are presently 54 years old and this means there is a significant age difference between the parties. This was committed in the night time. You used the force on the victim and also threatened him to silence him. You penetrated the anus of the victim number of times. For all these aggravating factors I add 05 years to reach 09 years imprisonment.
15. In mitigation you submitted that you are 54 years old, single, looking after the elderly mother.

16. 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. I find this is valid for other grave sexual offences also and find your personal mitigating factors have no weight for your sentence.
17. But the prosecution has confirmed to me that you are a first offender when this offence was committed and for this I deduct 02 years to reach 07 years imprisonment. Considering the serious nature of the offence I find this sentence which is near to the higher end of tariff is justifiable.

18. With the increase number of child sexual abuses reported in this country I am of the view that harsh sentences are warranted to denounce the behaviors of the accused and deter other from committing same or similar offences in future.
19. ASELI MATAIRAVULA, accordingly you are sentenced to 07 years imprisonment for this charge with a non-parole period of 05 years.

20. 28 days to appeal
    

Shageeth Somaratne

Resident Magistrate