State v Dau - Sentence [2018] FJMC 77; Criminal Case 599 of 2009 (23 August 2018)

IN THE MAGISTRATES’ COURT OF FIJI

AT NAUSORI

Criminal Case No: - 599/2009

STATE

V

JOSESE DAU

For the Prosecution : - Sgt Rao

The Accused : - Absent and unrepresented

Date of Judgment: 21^st of August 2018

Date of Sentence : 23^rd of August 2018

(The name of the victim is suppressed and she is identified as MB in this sentence)

SENTENCE

1. The accused was convicted after a hearing to one count of Indecent Assault contrary to section 154(1) of the Penal Code.
2. The victim, MB was 07 years old when this incident happened in 09^th June 2009. She was in class 01 at that time. The accused called her to his home when she was on the way to her lunch. The accused made her to lie down and touched her private part.
3. The maximum penalty for Indecent Assault under the Crimes Act is 05 years imprisonment.
   4. In RT Penioni Rokota v State HAA 68/02S her Ladyship Justice Shameem said "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) 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".

6. Considering the above judicial precedents and based on an objective seriousness of the offence, I select 16 months as the starting point for accused. This is selected from the lower end of the tariff.
7. The victim was 07 years old and a child when this offence was committed. She was a vulnerable person. At that time the accused was 42 years old and thus having a significant age difference between the parties. According to the caution interview of the accused the victim is his granddaughter and by committing this offence he breached her trust. I consider these as aggravating factors and add 18 months to reach 34 months imprisonment.
8. The accused is not coming to the court to make his mitigation.
   9. In Anand Abhay Raj v State [2014] FJSC 12; CAV 003 of 2014) his Lordship Chief Justice Anthony Gates held that in in sexual offences little weight can be given for personal mitigating factors of an accused. Hence even if available, I would have disregarded his personal mitigating factors.
   10. When this offence was committed the accused was a first offender and for that I deduct 04 months to reach 30 months imprisonment.
   11. This offence was committed in 2009 and the accused first appeared in the court on 16^th November 2009. The court record shows that he was appearing in the court all the time and even though the hearing was concluded in 2014 the judgment was pronounced only in 21^st August 2018. There is a delay of more than 09 years to conclude this matter. This delay has prejudiced the accused his right to have the trial to have begun and concluded without unreasonable delay. For this delay, I deduct 06 months from the sentence to reach 24 months imprisonment.
   12. Now I would consider whether to suspend the sentence of the accused pursuant to section 26(2) (b) of the Sentencing and Penalties Act.
       13. In R. v. Michel, Michel & Marlowe, 2005 NWTSC 94 the Justice V.A. Schuler, said

“The priority objectives of a sentence in the case of the sexual violation of a young person must always be denunciation and deterrence. The sentence must be sufficient punishment so as to reflect society’s abhorrence of such conduct so as to discourage others who might engage in similar conduct. Courts have long said that those are the important objectives.”

14. Considering the young age of the victim and the gross breach of trust by the accused, I find a custodial sentence is warranted in this case even though this offence was committed in 2009.
15. Accordingly the accused is sentenced to 24 months imprisonment for this charge with a non-parole period of 16 months. Since the accused is absconding this sentence is to be activated from the date of his apprehension.
16. For the safety of the victim, I also grant permanent domestic violence restraining order with standard non-molestation and non-contact conditions.
17. 28 days to appeal.

Shageeth Somaratne

Resident Magistrate