State v Nakailagi - Sentence [2023] FJMC 31; Criminal Case 380 of 2018 (14 December 2023)

IN THE MAGISTRATE’S CCOURT AT SIGATOKA

CRIMINAL DIVISION

Criminal Case No. 380/2018

THE STATE –v- SIMIONE VUA NAKAILAGI

For the Prosecution: Sgt. Cerei

For the Accused: Mr. Makanjee

SENTENCE

Simione Nakailagi you have been found guilty as charged after a full trial for the following charge: -

Statement of offence

DEFILEMENT OF A YOUNG PERSON BETWEEN 13 AND 16 YEARS OF AGE: Contrary to section 215 (1) of the Crimes Act 2009.

Particulars of offence

Simione Nakailagi on the 14^th day of July 2018 at Sigatoka in the Western Division had unlawful carnal knowledge of a girl namely, LN, aged 13 years, 7 months and 7 days old, a young person being above the age of 13 years but below the age of 16 years.

You are a first offender and so prior to this you were a person of good character.

Your Counsel has provided your mitigation as follows:

- You are 41 years of age with two children and work with Sigatoka Town Council earning about $300 a fortnight.
- You seek forgiveness for your actions and you ask for leniency.
- You promise not to reoffend.
- You have been in remand for about a month for this matter.

This offence under the Crimes Act attracts a maximum penalty of ten years imprisonment. The tariff for this offence is contained in the case of State v Raibevu [2012] FHJC 1040 when his Lordship Justice Madigan stated:

“...the usual rage of sentences is from a suspended sentence for protagonists in a ‘virtuous relationship’ while the high side of the ranger is for offender who are older and in position of trust with the victim”

This offence under the repealed Penal Code carried a maximum sentence of 5 years. The applicable tariff was from a suspended sentence to 3-4 years in prison as per Justice Shameem in the High Court Appeal matter of Donumainasava –v- The State [2001] FJHC 25.

In this case you both appear to be in a relationship. The aggravating factor is the disparity of your age and the victim’s age at the time this offence was committed. She was 13 years of age and at the time you were 35 years of age.

The mitigating factors include your seeking forgiveness for what you did.
In Laisiasa Koroivuki v the State ( Criminal Appeal AAU 0018 of 2010) where 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".

In sentencing you I take a starting point of 40 months imprisonment. I add 10 months for the aggravating factor, leaving you with a balance of 50 months imprisonment. I deduct 12 months for the mitigating factors including your status as a first offender, leaving you with a balance of 38 months imprisonment.

The Court will now consider whether or not to suspend the sentence. While I note you are a first offender, I recognize that these offences are becoming prevalent in our community. There must be a message of deterrence to would be offenders that our young girls are meant to be protected when going through stages of puberty. I therefore choose not to suspend your sentence.

Simione Nakailagi,

1. I hereby sentence you to 38 months imprisonment.
2. I deduct 1 month from this term as this was the estimated period you have spent in remand so I accept it as time served. This means your actual sentence is 37 months imprisonment, which is to be served immediately.
3. You are to serve 28 months imprisonment to be eligible for parole.
   

The sentence will now be explained to you.

28 days to appeal.

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J Daurewa

Resident Magistrate

14^th December 2023