State v Luvu - Sentence [2018] FJMC 9; Criminal Case 24 of 2017 (15 February 2018)

IN THE MAGISTRATES’ COURT OF FIJI

AT LEVUKA

Criminal Case No: - 24/2017

STATE

V

VILINISI LUVU

Counsel: Ms.Serukai(ODPP) for the Prosecution

Mr.N.Chand(LAC) for the Accused

Date of Judgment: 15th of February 2018

Date of Sentence : 15th of February 2018

SENTENCE

1. VILINISI LUVU , you were convicted after a hearing to one count of Indecent Assault contrary to section 212(1) of the Crimes Act No 44 of 2009(“Crimes Act” ) .
2. During the hearing the following facts were proved by the prosecution. On 12^th March 2017 the victim was inside her house and saw you were knocking on her door. She opened the door because you were a police officer and was in your uniform. You asked for glass of water and after drinking that followed the victim to her kitchen and grabbed her from her hips. You also touched her private part and thigh and the victim managed to escape after some struggle. She ran to her husband in his work place for help and later reported the matter to police.
3. The maximum penalty for this offence under the Crimes Act 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 above judicial precedents and based on an objective seriousness I select 20 months as the starting point for your sentence.
7. I consider following as aggravating factors in this case:
   1. You were working as a police officer in Fiji Police Force and tasked to protect the public. By committing this offence you betrayed the trust of the public, Police Department as well as the victim who allowed you inside her home trusting and respecting your position;
   2. You committed this offence inside the house of the victim where she was supposed to be safe and protected ;
   100. You locked the door of the house to prevent her from escaping ;
   4. There was a substantial age difference between you and the victim( nearly 30 years) ;
   5. Your used force on the victim which caused body pain on her which lasted few days after the incident.
8. For these numerous aggravating factors I add 16 months to reach 36 months imprisonment.
9. In mitigation your counsel submitted the following grounds:
   1. You are 53 years old;
   2. First offender;
   100. Looking after elderly father and a 6 years old small child ;
   4. Fully co-operated with the police;
   5. Seeking forgiveness.
      
10. 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. In my view this applies to other sexual offences also including Indecent Assault. Accordingly I find your personal mitigating factors have no weight in this case.
    
    11. Further your counsel submitted that you are seeking forgiveness from this court implying that you are remorseful of your behavior. In Anand Abhay Raj v State [2014] FJSC 12; CAV 003 of 2014) (supra) again his Lordship Chief Justice said “However the suggestion that he was remorseful could count for nothing. He had pleaded not guilty, which was his right. But in doing so, he had put the complainant through the misery, fear, and embarrassment of having to give evidence and be cross-examined. Then he gave no evidence. Such a combination has been considered to amount to no mitigation at all: Asesela Drotini v. The State Crim. App. AAU0001/2005S 24th March 2006. She gave evidence in court from behind a screen.”
        
    12. In this case you pleaded not guilty till the last minute. Even though you said you have co-operated with the police in your caution statement you have denied and even made some allegation against the husband of the victim. Even though denial of the charge is your right under the Constitution, you have put the victim in to misery by coming and giving evidence and subjected to vigorous cross-examination. I have also noted how much uncomfortable she was in the court even though it was closed to the public. Hence I do not find your remorse or seeking forgiveness at this stage as valid mitigating factors in this case.
13. This leaves me with your past good behavior which maybe a valid factor to consider in sexual offences pursuant to Sentencing and Penalties Act. As noted earlier this is a gross breach of trust where you exploited your position to assault an innocent woman in her home.
14. In State v Bole her Ladyship Justice Shameem said :“ In breach of trust cases, comparably less weight is put on good character, because only people of good character are given positions of trust and responsibility. It is the breach of trust which is the harm done in these offences. “
15. In this case being a police officer you required a good character and since you have betrayed the trust I find your past good behavior also should not be consider as a mitigating factor. Hence your final sentence in this case is 36 months imprisonment.
16. VILINISI LUNU, you were working as special police constable and tasked with the duty to protect the public from the criminals in Levuka Island. The people trust the police officers as shown in this case where the victim allowed you to come inside the house against the expressed wish of her husband. But you subjected her to your lust by assaulting her inside her own kitchen. This is a gross breach on your part which would have left not only a black mark on the Fiji police force but also diminishes the public confidence in them. Hence this long custodial sentence is merited to denounce your behavior and to punish you for this offence. Further this sentence is a warning to sexual predators who may be in law enforcement authorities and who would use their power and authority to exploit the vulnerable women in the society.
17. Accordingly I sentence you to 3 years imprisonment for this charge with a non-parole period of 02 years.
18. 28 days to appeal.

Shageeth Somaratne

Resident Magistrate