State v N.P.S - Sentence [2026] FJMC 24; Criminal Case 495 of 2021 (4 March 2026)

IN THE MAGISTRATES’ COURT
AT BA
CRIMINAL JURISDICTION

Criminal Case No. 495/2021

BETWEEN: STATE

PROSECUTION

AND: N.P.S

ACCUSED

Counsel: WCPL 4897 Venu Singh for Police Prosecution
Mr. M. Yunus for the Accused

Date of Trial: 17 January 2025
Date of Judgment: 20 February 2026
Date of Sentence: 4 March 2026.

SENTENCE

Introduction

1. The names of the victim and Accused are suppressed for the purposes of recording and publication.
   
2. Mr. N.P.S., on 20 February 2026, the Court found you guilty for 4 counts of Indecent Assault contrary to section 212(1) of the Crimes Act 2009, 1 count of Sexual Assault contrary to 210(1) of the Crimes Act 2009, 1 count of Criminal Intimidation contrary to section 375(1)(a)(i)(iv) of the Crimes Act 2009 and 3 counts of Assault Causing Actual Bodily Harm contrary to section 275(1) of the Crimes Act 2009. The particulars of the offences are as follows:
   

Count 1

Statement of Offence

Indecent Assault: Contrary to Section 212(1) of the Crimes Act 2009.

Particulars of Offence

N.P.S on the 11^th day of October 2021 at Tauvegavega, Ba in the Western Division unlawfully and indecently assaulted R by touching her stomach on top of her clothes.

Count 2

Statement of Offence

Indecent Assault: Contrary to Section 212(1) of the Crimes Act 2009.

Particulars of Offence

N.P.S on the 11^th day of October 2021 at Tauvegavega, Ba in the Western Division unlawfully and indecently assaulted R by touching her stomach inside her clothes.

Count 3

Statement of Offence

Sexual Assault: Contrary to Section 210(1) of the Crimes Act 2009.

Particulars of Offence

N.P.S on the 11^th day of October 2021 at Tauvegavega, Ba in the Western Division unlawfully and indecently assaulted R by touching her buttock inside her panty.

Count 4

Statement of Offence

Indecent Assault: Contrary to Section 212(1) of the Crimes Act 2009.

Particulars of Offence

N.P.S on the 11^th day of October 2021 at Tauvegavega, Ba in the Western Division unlawfully and indecently assaulted R by touching her thigh.

Count 5

Statement of Offence

Indecent Assault: Contrary to Section 212(1) of the Crimes Act 2009.

Particulars of Offence

N.P.S on the 11^th day of October 2021 at Tauvegavega, Ba in the Western Division unlawfully and indecently assaulted R by pulling her shorts down.

Count 6

Statement of Offence

Criminal Intimidation: Contrary to Section 375(1)(a)(i)(iv) of the Crimes Act 2009.

Particulars of Offence

N.P.S on the 11^th day of October 2021 at Tauvegavega, Ba in the Western Division without lawful excuse threatened R by showing his fists and uttering the words “I will punch you” with intent to cause alarm to R.

Count 7

Statement of Offence

Assault causing Actual Bodily Harm: Contrary to Section 275(1) of the Crimes Act 2009.

Particulars of Offence

N.P.S on the 11^th day of October 2021 at Tauvegavega, Ba in the Western Division assaulted R thereby occasioning her actual bodily harm.

Count 8

Statement of Offence

Assault causing Actual Bodily Harm: Contrary to Section 275(1) of the Crimes Act 2009.

Particulars of Offence

N.P.S on the 11^th day of October 2021 at Tauvegavega, Ba in the Western Division assaulted Ramesh Prasad thereby occasioning him actual bodily harm.

Count 9

Statement of Offence

Assault causing Actual Bodily Harm: Contrary to Section 275(1) of the Crimes Act 2009.

Particulars of Offence

N.P.S on the 11^th day of October 2021 at Tauvegavega, Ba in the Western Division assaulted Rishil Prasad thereby occasioning him actual bodily harm.

3. I now convict you for the above offences and proceed to sentence you.
   
4. The brief facts are as follows:
   
   1. R was born on 5 June 2008 and as such, at the time of the offending she was 13 years and 4 months old as per R’s Certificate of Birth which was tendered as ‘PEX1’. Further, you were the step-father of R and had lived with you and her mother for 8-9 years.
   2. On 11 October 2021, R had been at home with you. She had been sleeping on the mattress in the sitting room when she felt your hand on her stomach which you touched 2-3 times over the black t-shirt she had been wearing.
   100. You then he placed his hand underneath her T-shirt and touched her stomach and then moved your hand moving towards her buttocks and touched her buttocks under her garments.
   4. You then took your hands to her thighs and touched her thighs. R stood up and went and sat on the settee but then you grabbed both her wrists and forcefully dragged her down to the mattress and told her to sleep with you.
   5. It was then that he pulled her shorts down to her thigh which led to R calling out for help. You then showed your fist and told her if she yelled then he you would punch her.
   6. Due to you grabbing R’s wrists, there was slight tenderness on her right wrist as per the Medical Report dated 11 October 2021 which was tendered as ‘PEX4’.
   7. R managed to free herself and then ran to the washroom where she locked herself until she saw you go inside.
   8. R then ran to her aunty’s place where she banged on their door and told her aunty and uncle what you had done to her.
   9. You had followed R as such her uncle and brother had told you not to go anywhere which then led to an altercation between you and Ramesh Prasad and Rishil Prasad.
   10. You had hit Ramesh Prasad on his shoulder and that as he was on the ground, you strangled him and dragged him to a distance. Ramesh Prasad’s Medical Report which was tendered as ‘PEX5’ showed that he had an abrasion and bruises on the right side of his chest wall and shoulder with abrasions on his neck, right elbow and right knee.
   11. When Rishil Prasad went to pick his father up, you then punched him. Rishil Prasad’s Medical Report which was tendered as ‘PEX6’ showed that the left eye was bruised/hematoma with normal vision with an abrasion on his left thigh and hip area caused from being dragged and abrasion on left knee.
       

Objective Seriousness

5. Considering the prevalent nature of this offence in a domestic environment, especially targeting children, I find the objective seriousness of this crime is high.
   

Sentencing Purpose

6. Considering that the primary purpose of this sentence is founded on the principle of deterrence, it is the responsibility of the Court to deter others from committing such offences of the same or similar nature as well as to protect the community from those who commit such offences.
   
7. A deterrent sentence for such offences of this nature demonstrates the gravity of the offence and reflects the society’s immediate denouncement of such crimes.
   

Sentencing Regime

8. The maximum penalty for the offence of Indecent Assault is 5 years imprisonment.
   
9. In the case of Rokota v State Criminal Appeal No. HAA0068 of 2002 (23 August 2002) Her Ladyship Justice Shameem (as she then was) when dealing with an appeal of Indecent Assault under the now repealed Penal Code which had a maximum penalty of 5 years imprisonment with or without corporal punishment stated:
   

“Sentences for indecent assault range from 12 months imprisonment to 4 years. The gravity of the offence will determine the starting point for the sentence. The indecent assault of small children reflects on the gravity of the offence. The nature of the assault, whether it was penetrative, whether gratuitous violence was used, whether weapons or other implements were used and the length of time over which the assaults were perpetrated, all reflect on the gravity of the offence. Mitigating factors might be the previous good character of the accused, honest attempts to effect apology and reparation to the victim, and a prompt plea of guilty which saves the victim the trauma of giving evidence.

These are the general principles which affect sentencing under section 154 of the Penal Code. Generally, the sentence will fall within the tariff, although in particularly serious cases, a five year sentence may be appropriate. A non-custodial sentence will only be appropriate in cases where the ages of the victim and the accused are similar, and the assault of a non-penetrative and fleeting type. Because of the vast differences in different types of indecent assault, it is difficult to refer to any more specific guidelines than these.”

10. Thus, the tariff would be 12 months to 4 years with 5 years being more appropriate for serious cases and non-custodial sentence being more appropriate for cases where the ages of the victim and the accused are similar, and the assault is of a non-penetrative and fleeting type.
    
11. The above tariff was also recently used by His Lordship Justice Sharma in State v Singh Criminal Case. HAC 048 of 2021 (21 June 2024).
12. The maximum penalty for the offence of Sexual Assault is 10 years imprisonment.
    
13. In State v Laca; Criminal Case No: HAC 252 of 2011 (14 November 2012) His Lordship Justice Madigan (as he then was) stated that the range of sentence should be between 2 to 8 years and that the guidelines from the United Kingdom Legal Guidelines for Sentence was a useful guide to sentencing within the tariff of two to eight years. It was stated:
    

6. The maximum penalty for this offence is ten years imprisonment. It is a reasonably new offence, created in February 2010 and no tariffs have been set, but this Court did say in Abdul Kaiyum HAC 160 of 2010 that the range of sentences should be between two to eight years. The top of the range is reserved for blatant manipulation of the naked genitalia or anus. The bottom of the range is for less serious assaults such as brushing of covered breasts or buttocks.

7. A very helpful guide to sentencing for sexual assault can be found in the United Kingdom's Legal Guidelines for Sentencing. Those guidelines divide sexual assault offending into three categories:

Category 1 (the most serious)

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

Category 2

(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 part of the offender's body (other than the genitalia) with part of the victim's body (other than the genitalia).

14. The tariff for sexual assault is between 2-8 years imprisonment.
    
15. The maximum penalty for Criminal Intimidation where there is intent to cause alarm to a person is 5 years imprisonment.
    
16. In the case of Sadriu v State Criminal Appeal No. HAA 65 of 2016 (15 March 2017) His Lordship Justice Sharma highlighted that there was no applicable tariff for the offence of Criminal Intimidation under section 375(1)(a) of the Crimes Act and stated:
    

“In my view an acceptable tariff would be a sentence between 6 months and 2 years imprisonment. Serious cases should be given a sentence in the upper range whilst less serious cases should be given a sentence at the lower end of the scale.”

17. Thus, the applicable tariff is between 6 months and 2 years imprisonment with serious cases being given sentences in the upper range and less serious cases at the lower end.
    
18. The maximum penalty for this offence of Assault causing Actual Bodily Harm is 5 years imprisonment.
    
19. In the case of Matai v State [2018] FJHC 25; Criminal Appeal 108.2017Ltk (26 January 2018) His Lordship Justice Madigan imposed a new domestic violence tariff. He stated:
    

“.... it must now be said that the tariff for a domestic violence assault causing actual bodily harm is a wide range of 6 to 18 months, wide enough to cater for all kinds of injuries. It would be only in exceptional circumstances that a suspended sentence would be passed for the offence, given that sending the convict back into the family home could well have perilous consequences. For a second offence on the same victim, a suspended sentence is inconceivable.

20. Thus, the tariff applicable in this matter given that there is domestic violence is 6 to 18 months and in only exceptional cases would a suspended sentence be given.
    

Level of Harm

21. It is evident that this is a case of taking sexual advantage of a child by a mature adult as such I find that the level of harm in this matter is high.
    

Mitigating and Aggravating Factors

22. The Court notes that mitigation offered by your counsel; however, personal circumstances and family background holds very low mitigatory value in this offending (vide Raj v State Appeal No. CAV 0003 of 2014 (20 August 2014).
    
23. The Court was informed that you are a first offender.
    
24. The aggravating factors are that R was a vulnerable child at the time, the disparity of age being 19 years between you and R and you breached R’s, Ramesh Prasad’s and Rishil Prasad’s trust when you committed the offences against them.
    

Sentence

25. Considering Laca [supra], the Court finds that the act of touching R’s buttocks comes within category 3.
    
26. Taking note of section 17 of the Sentencing and Penalties Act, I prefer to impose an aggregate sentence for all offences.
    
27. Considering the objective seriousness coupled with the sentencing purpose and the level of harm, I take a starting point of 36 months. I will then add 18 months for the aggravating factors making it a total of 54 months imprisonment.
    
28. For your mitigating circumstances being that you are 37 years with no prior convictions, I will deduct 12 months. For the administrative delay in having your matter dealt within a reasonable time, I will deduct a further 8 months leaving you with a balance of 34 months
    
29. Section 18(1) of the Sentencing and Penalties Act states that the Court must fix a non-parole period if it sentences an offender to be imprisoned for life or for a term of 2 years or more. Thus, considering the seriousness of the crime, the purpose of this sentence and opportunities for rehabilitation, your non-parole period will be for a period of 20 months effective forthwith.
    
30. Thus, your sentence is 34 months imprisonment with a non-parole period of 20 months imprisonment.
    
31. Further, as this incident involves domestic violence, there are sufficient grounds to make an order under the Domestic Violence Act. Accordingly, I grant a permanent domestic violence restraining order (DVRO) against you for the protection of R, Ramesh Prasad and Rishil Prasad with standard non-molestation conditions and non-contact orders. This DVRO will remain in force until this court or any other competent court varies or suspends it. If you breach the DVRO, you will be liable to be charged and prosecuted for an offence pursuant to section 77 of the Domestic Violence Act.
    
32. Any party aggrieved with this decision has 28 days to appeal to the High Court.
    

N. Mishra
Resident Magistrate