State v Rayagona - Sentence [2018] FJMC 97; Criminal Case 68 of 2018 (30 October 2018)

IN THE MAGISTRATES’ COURT OF FIJI

AT NAUSORI

Criminal Case No: - 68/2018

STATE

V

SAILOSI RAYAGONA

For the Prosecution: - Sgt.Rao

The Accused: - In person

Date of Judgment: 30^th of October 2018

Date of Sentence: 30th of October 2018

SENTENCE

1. SAILOSI RAYAGONA, 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, it was proved that on 19^th January 2018 you entered into the house of the victim and indecently assaulted her. She woke up after feeling someone touching her thigh in the early morning and later it was found it was you who committed this offence. You ran away from the place and caught by the nephew of the victim.
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 that the tariff for this offence is from

"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 12 months as the starting point for your sentence. This is selected from the lower end of the tariff.
7. The victim was is your cousin and by committing this offence you breached her trust. This was committed 4 am in the morning inside her bedroom and at that time you were drunk. I consider these as aggravating factors and 12 months to reach 24 months imprisonment.
8. In mitigation, you submitted that you are 28 years old, single and working as a farmer.
   9. In Anand Abhay Raj v State [2014] FJSC 12; CAV 003 of 2014) his Lordship Chief Justice Anthony Gates held that in sexual offences little weight can be given for personal mitigating factors of an accused. Hence I disregard your above personal mitigating factors.
   10. You have no previous convictions and for that, I deduct 06 months to reach 18 months imprisonment.
   11. You have been remand from 22^nd August 2018 and pursuant to section 24 of the Sentencing and Penalties Act I deduct that period to reach 16 months imprisonment.
   12. Now I have to consider whether to suspend your sentence pursuant to section 26(2) (b) of the Sentencing and Penalties Act.
       13. The facts, in this case, shows a relative breaking into the bedroom of a victim and sexually assaulting her whilst she was sleeping. This behavior of the accused need to be denounced even though he is a first offender. Women in this country need to feel safe and protected in their homes instead of subject to sexual abuse by the family members.
       14. But the accused is a first offender and this is an assault of a non-penetrative and fleeting type. Hence there need to be some opportunity for the accused to reform also.
       15. To fulfill these objectives I find a partly suspended sentence is suitable in this case.
       16. SAILOSI RAYAGONA, Accordingly I sentence you to 16 months imprisonment for this charge.
       17. From this sentence, you have to serve 10 months in the correction center and balance 06 months will be suspended 03 years.
       18. The partly suspended sentence is explained to the accused.
       19. For the safety of the victim, I also grant permanent domestic violence restraining order with standard non-molestation conditions.
   20. 28 days to appeal.

Shageeth Somaratne

Resident Magistrate