Judge at the High Court in Labasa, Justice Lee James Burney has emphasised the complexities of sentencing in sexual assault cases, underscoring the need for judgments to reflect Fiji’s local context and legal framework.
The case, involving a charge of sexual assault, was tried before him and in his ruling on July 11, Justice Burney discussed the application of sentencing guidelines and the importance of consistent charging decisions.
Justice Burney noted that the maximum penalty for sexual assault in Fiji is 10 years’ imprisonment.
He said while both the prosecution and defense agreed that the case before him fell within category 2(ii) of the three-tier framework established in the precedent-setting Laca case—indicating it was not among the most serious sexual assault offenses—the judge said that he disagreed.
“Whilst the parties may be correct on a strict reading of Laca, this case illustrates the limitations on the utility of sentencing guidelines derived from overseas jurisdictions,” Justice Burney stated.
The judge highlighted that sentencing must be rooted in Fiji’s local conditions and criminal justice framework.
He cautioned that reliance on foreign guidelines, such as those in Laca, may not fully capture the nuances of cases in Fiji.
“Every sentencing exercise is heavily fact-specific and must be approached as such,” he added.
Justice Burney also raised questions about charging decisions in this case.
He observed that non-consensual oral penetration of a vulva constitutes rape under Fijian law, and such acts are sometimes charged as rape rather than sexual assault.
In this instance, the Director of Public Prosecutions opted to charge the defendant with sexual assault, a decision that influences the sentencing range upon conviction.
“It is generally desirable that charging decisions are principled and consistent,” Justice Burney said.
He noted that the charge laid ultimately shapes the sentencing outcome.
Justice Burney imposed 5 years’ 11 months’ imprisonment with a non-parole period is 3 years 3 months on the accused.
