punishable by prision mayor. This is undeniably unfair to the child victim. To be sure, it was not the intention of the framers of R.A. No. 8353 to have disallowed the applicability of R.A. No. 7610 to sexual abuses committed to children. Despite the passage of R.A. No. 8353, R.A. No. 7610 is still good law, which must be applied when the victims are children or those "persons below eighteen (18) years of age or those over but are unable to fully take care of themselves or protect themselves from abuse, neglect, cruelty, exploitation or discrimination because of a physical or mental disability or condition." Applying the Indeterminate Sentence Law, the maximum term of the indeterminate penalty shall be that which could be properly imposed under the law, which is fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal. On the other hand, the minimum term shall be within the range of the penalty next lower in degree, which is reclusion temporal in its minimum period, or twelve (12) years and one (1) day to fourteen (14) years and eight (8) months. Hence, Armando should be meted the indeterminate sentence of twelve (12) years, ten (10) months and twenty-one (21) days of reclusion temporal, as minimum, to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal, as maximum.[39] [citations omitted] In People v. Ricalde,[40] wherein accused was charged and convicted of rape by sexual assault, the same penalty was imposed. In this case, BBB, as established by her birth certificate, was only 8 years old when the incident happened. Her age was also alleged in the information. Hence, the higher penalty of twelve (12) years, ten (10) months and twenty-one (21) days of reclusion temporal, as minimum, to fifteen (15) years, six (6) months and twenty (20) days of reclusion temporal, as maximum, as applied in the foregoing cases of People v. Chingh and People v. Ricalde, should be similarly imposed. In the recent case of People v. Caoili,[41] there had been divergent opinions as to whether the act of inserting the fingers into the vagina constitutes rape by sexual intercourse. In said case, the accused was charged with the crime of rape through sexual intercourse. However, after trial, the crime proved was rape by sexual assault through the insertion of the finger into the vagina. Thus, the majority held that the accused could not be convicted of rape through sexual intercourse. In so ruling, it declared that the variance doctrine cannot be applied to convict an accused of rape by sexual assault if the crime charged is rape through sexual intercourse, since the former offense cannot be considered subsumed in the latter. However, applying the same variance doctrine, it convicted the accused of the lesser crime of acts of lasciviousness performed on a child, i.e., lascivious conduct under Section 5 (b) of R.A. No. 7610, which was the offense proved because it is