State v Singh [2018] FJMC 94; Criminal Case 62 of 2014 (9 October 2018)

IN THE MAGISTRATES’ COURT OF FIJI

AT NAUSORI

Criminal Case No: - 62/2014

STATE

V

JAI SINGH

For the Prosecution : - WPC Siteri

The Accused : - Absent and unrepresented

Date of Judgment: 08^th of October 2018

Date of Sentence : 09^th of October 2018

(The name of the victims are suppressed and identified as Ms. ER and Ms.MN respectively for this sentence)

SENTENCE

1. The accused was convicted after a hearing to 2 counts 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.
3. On 01/12/2013 Ms.ER came to the shop of the accused with her father in Nausori. Whilst victim was alone the accused came from behind and touched her breasts. At that time she was only 10 years old.
4. Second incident happened on the same date where Ms. MN came to the shop with the lunch of the accused. Whilst she was inside the shop the accused came again from behind and touched her breasts. He also wanted to have sex with her. She was 22 years old at that time.
5. The maximum penalty for Indecent Assault under the Crimes Act is 05 years imprisonment.
   6. 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"
7. 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.”

8. The 2 offences the accused has been convicted are found on same facts and also similar nature .Hence I am going to impose an aggregate sentence of imprisonment for these two counts pursuant to section 17 of the Sentencing and Penalties Act.
9. 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".

10. Considering the above judicial precedents and based on an objective seriousness of the offence, I select 24 months as the starting point for the aggregate sentence.
11. The first victim was only 10 years old and a child when this offence was committed. She was a vulnerable person. At that time the accused was 67 years old and thus having a significant age difference between the parties. This age difference is common to the second victim also as she was only 23 years old at the time of offending. The accused was a family friend of victims and by committing these offences he breached the trust of the victims and their family. I consider these as aggravating factors and add 18 months to reach 42 months imprisonment.
12. The accused is not coming to the court to make his mitigation.
    13. 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.
    14. When this offence was committed the accused was a first offender and for that I deduct 06 months to reach 36 months imprisonment.
        15. 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.”

16. Considering the young age of the victims, significant age difference between the parties and the gross breach of trust by the accused, I find a custodial sentence is warranted in this case even though these offences were committed in 2013.
17. Accordingly the accused is sentenced to 03 years imprisonment for this charge with a non-parole period of 30 months. Since the accused is absconding this sentence is to be activated from the date of his apprehension.
18. The court record shows that the accused has left the country in 2014 and his last known address was in Canada. Hence the prosecution has to liaise with the ODPP and other relevant authorities and see the possibility of getting the accused back to Fiji to serve this sentence.
19. 28 days to appeal.

Shageeth Somaratne

Resident Magistrate