State v Kaliveti [2018] FJMC 95; Criminal Case 638 of 2014 (9 October 2018)

IN THE MAGISTRATES COURT OF FIJI
AT NAUSORI

Criminal Case No: - 638/2014

HAC No: 328/2014

STATE

V

KELEMEDI KALIVETI

For the Prosecution: WPC Siteri

For the accused: Ms.S.Ali (LAC)

Date of Judgment: 08^th of October 2018

Date of mitigation: 09^th of October 2018

Date of Sentence : 09^th of October 2018

SENTENCE

1. KELEMEDI KALIVETI , 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”).
2. The victim was having chest pain in the school and with her brother came to your house in Nasele on 20/10/2014 for a massage. In your village you had a reputation of massage and asked her to remove her clothes which she obeyed. You then started massaging her chest and moved your hand and started touching her private part. This continued on the next 2 days also when she came for the massage. You were her uncle and she trusted you. She was consenting because you told her that she was possessed by demons.
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 sexual lt into 3 to 3 categories.

Category 1 (the most serious)

Contact between the naked genitalia of the offender and ngenitface or mouth of the victim.

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).

5. You touched her private part using your hand thus falling in to the category 02.
6. 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.
7. 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
8. Now I would consider the aggravating factors in this case. The victim was 19 years old and at that time you were 46 years old putting significant age difference between the parties. You were her uncle and she trusted you .By committing this offence you breached that trust. You made false representation and got her consent. For all these aggravating factors I add 04 years to your interim sentence to reach 08 years imprisonment.
9. In written mitigation filed this morning your counsel submitted that you are presently 51 years old, farmer and supporting the family, looking after the children.

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. I find this is valid for other grave sexual offences also and find your personal mitigating factors have no weight for your sentence.
11. The prosecution confirmed that you are a first offender which would be the only valid mitigating factor in this case. For this I deduct 02 years to reach 06 years imprisonment.
12. ARCHBOLD 2017 at 5-174 states :

In case involving substantial delay, it is the duty of a sentencing court, whether or not the matter has been raised on behalf of the defendant, to examine the possibility of a breach of the right to a fair trial within a reasonable time, in order to decide whether any such breach should have an effect on the disposal of the case, in deciding whether any delay constitutes a breach of the “reasonable time” guarantee, the three matters that fall to be considered are (i) the complexity of the case, (ii) the conduct of the appellant and iii) the conduct of the administrative and judicial authorities; and these factors are also relevant the question whether, when a breach has been established, there should be any adjustment of the sentence that would have been passed if there had been no delay Rummun v. State of Mauritius [2013] I W.L.R. 598, PC

13. In Faiyum v State [2018] FJHC 204; HAA001.2018 (20 March 2018) his Lordship Justice Goundar said:

“Section 14 (2) (g) of the Constitution gave the appellant a right to have the trial begin and conclude without unreasonable delay. The Magistrates’ Court took more than four years to conclude the case against the appellant. The charge was not complex. Neither the prosecution nor the appellant is at fault. The appellant continuously appeared whenever the case was called in court. But there was a lack of commitment by the court to hold a trial. The delay is systematic and unreasonable. Unreasonable post-charge delay is a relevant consideration in sentencing. As the Court of Appeal in Sahim v. The State MISC Action No. 17 of 2007 (25 March 2008) said:

The second question is if there has been a breach what is the remedy? In determining the appropriate remedy, absence of prejudice becomes relevant. Where an accused person is able to be tried fairly without any impairment in the conduct of the defence, the prosecution should not be stayed. Where the issue is raised on appeal, and the appellant was fairly tried despite the delay, his or her remedy lies in the proportionate reduction of sentence or in the imposition of a non-custodial sentence. (underlining mine)

[9] Similarly, in AG’s Reference (No. 2 of 2001) [2004] 2 AC 72 Lord Bingham said at [24]:

If the breach of the reasonable time requirement is established retrospectively, after there has been a hearing, the appropriate remedy may be a public acknowledgement of the breach, a reduction in the penalty imposed on a convicted defendant or the payment of compensation to an acquitted defendant.”

14. This case has been pending in the court from 2014 and you were attending the court all the times for the hearings which could not proceed for various reasons which were beyond your control. This case is not a complex matter and only matter to consider about the credibility of witnesses. I find by failing to conclude this matter within a reasonable time your right to have trial begin and concluded within reasonable time seems to have breached. This need to be acknowledge with some reduction. Hence I deduct 06 months from your sentence to reach 05 years 06 months imprisonment.
15. KELEMEDI KALIVETI , the victim came to you seeking relief for her pain. Instead of relieving her suffering, you put her to more misery by subjecting to sexual abuse. Hence this long custodial sentence would serve to denounce your behavior and deter others from committing this kind of offences in future.

16. Accordingly you are sentenced to 05 years 06 months imprisonment for this charge with a non-parole period of 05 years.

17. For the safety of the victim I also issue a permanent domestic violence restraining order with standard non molestation and non-contact conditions.
18. 30 days to appeal to the Court of appeal.
    

Shageeth Somaratne

Resident Magistrate