State v Tukana [2018] FJMC 90; Criminal Case 183 of 2017 (2 October 2018)

IN THE MAGISTRATES COURT OF FIJI
AT NAUSORI

Criminal Case No: - 183/2017

HAC No : 106/2017

STATE

V

WILLIE TUKANA

For the Prosecution: Sgt.Shalend

For the accused: Ms.Tuiloma(LAC)

Date of Judgment: 28^th of September 2018

Date of mitigation : 02^nd of October 2018

Date of Sentence : 02^nd of October 2018

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

SENTENCE

1. WILLIE TUKANA , you were convicted after a hearing to one count of Sexual Assault contrary to section 210(1) (a) of the Crimes Act No.44 of 2009(“Crimes Act”) and 2 counts of Indecent Assault contrary to section 212(1) of the Crimes Act.
2. The victim, Ms. Ms.LB in this case was 14 years old girl and was a form 4 student at Lelean Memorial School,Nausori. You were a school teacher there and as well as the athletic coach. Between 27th day of February to the 15th day of March, 2017 you asked the victim to meet you to discuss about her running technique. Trusting you she came to see you in your workshop and you took her to the store room. You asked her to stretch her legs and then indecently touched her thigh. You also asked her to remove her panty and then touched her private part and also inserted your fingers inside. After few days you asked her to come to the work shop again and repeated the same thing. This time you touched her breast and kissed her also.
3. The maximum penalty for Sexual Assault under the Crimes Act is 10 years imprisonment. Tariff is 02 to 08 years imprisonment.
4. 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 s assault into 3 to 3 catego

Category 1 (the most serious)

Contact between the naked genitalia of the offendernakedtalia face or mouth of the victim.

p>Category 2

(i) C(i) Contact 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).

5. You touched her private part using your hand thus falling in to the category 02.
6. The maximum penalty for Indecent Assault under the Crimes Act is 05 years imprisonment.
7. 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"
8. Section 17 of the Sentencing and Penalties Act, provides:
“If an offender is convicted of more than one offence founded on the same facts, or which form a series of offences of the same or a similar character, the court may impose an aggregate sentence of imprisonment in respect of those offences that does not exceed the total effective period of imprisonment that could be imposed if the court had imposed a separate term of imprisonment for each of them.”
9. The offences that you convicted are found on same facts as well as similar nature and hence I am going to impose an aggregate sentence of imprisonment for these 3 counts pursuant to section 17 of the Sentencing and Penalties Act.
10. 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.
11. Considering the above judicial precedents and based on an objective seriousness of the offences, I select 04 years as the starting point for your aggregate sentence
12. Now I would consider the aggravating factors in this case. The victim was 14 years old child when you committed these offences. At that time you were 43 years old putting significant age difference between the parties. You were her teacher and as well as the athletic coach. She trusted you and by committing these offences you breached that trust. You also betrayed the trust of the school authorities who placed you in charge to train these children. You forced to come and give evidence in the court and also made unfound allegation of her stealing money during your evidence. For all these aggravating factors I add 05 years to your interim sentence to reach 09 years imprisonment.
13. In written mitigation filed this morning your counsel submitted that you are 43 years old and presently working as a casual worker. You are married with 6 children and sole bread winner of the family.

14. 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.
15. The prosecution confirmed that you are a first offender which would be the only valid mitigating factor in this case. Now I would consider how much weight that should be given for this ground. As noted earlier by committing these offences you breached the trust of the victim and the school authorities.
16. In State v Bole [2005] FJHC 470; HAC0038S.2005S (4 October 2005) 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.”

17. Even though Madam Shameem was discussing about fraud offences in State v Bole (supra) I think this can be applied in sexual offences also where the offender was holding a position of trust. To be employed as a teacher by the Education Ministry you need to have a clean record. Also your past good behavior would have been one factor to be employed as athletic coach by your school giving access to children. This maybe a reason also for no one to raise question about you calling the victim in odd hours to your work shop. Accordingly I do not think your past good behavior deserve much credit in this case. Hence I deduct only 02 years from your sentence to reach 07 years imprisonment. This is your final sentence
18. Teaching profession is considered as noble profession in Fiji and considerable trust and responsibility is placed upon them by students, parents, school management and Education ministry. When a teacher takes advantage of this trusted position to satisfy his depraved sexual impulses, there is a natural sense of public outrage. Hence long custodial sentences are called for to deter such behavior and to redress the grievance of victims, relatives and the public alike by imposing sentences that adequately reflect public abhorrence of crimes of this sort. These are the main purposes of this sentence.

19. WILLIE TUKANA, accordingly you are sentenced to 07 years imprisonment for this charge with a non-parole period of 05 years.

20. 30 days to appeal to the Court of appeal.
    

Shageeth Somaratne

Resident Magistrate