State v Ligatabua [2011] FJHC 2; HAR09.2010 (18 January 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
REVISIONAL JURISDICTION

Revisional Case No: HAR09 of 2010

BETWEEN:

THE STATE
Applicant

AND:

IOWANE LIGATABUA
Respondent

Date of Hearing: 1 December 2010
Date of Ruling: 18 January 2011

Counsel: Ms L. Koto for State
Mr. H. Rabuku for Respondent

RULING

[1] This is a review of sentence by the Court's own motion under section 260(1) of the Criminal Procedure Decree 2009.

[2] On 26 April 2010, the respondent pleaded guilty to the following offences in the Magistrates' Court:

First Count

Statement of Offence

INDECENT ASSAULT: Contrary to section 212 of the Crime Decree No. 44 of 2009.

Particulars of Offence

IOWANE LIGATABUA on the 22nd day of April 2010 at Suva in the Central Division unlawfully and indecently assaulted EMA ROSI TALEI.

Second Count

Statement of Offence

ASSAULTING POLICE OFFICER IN DUE EXECUTION OF HIS DUTY:

Contrary to section 277(b) of the Crime Decree No. 44 of 2009.

Particulars of Offence

IOWANE LIGATABUA on the 22nd day of April 2010 at Suva in the Central Division assaulted Corporal 3253 Timoci Vusoniyasi in the due execution of his duty.

[3] After two months, on 4 August 2010, he was sentenced to 10 months imprisonment for indecent assault and 8 months imprisonment for assaulting police officer in due execution of duty. Both terms of imprisonment were suspended for 3 years.

[4] The facts were that on 24 April 2010 at about 9.50pm the complainant was walking along Rodwell Road in Suva when the respondent approached her and asked for 50¢. When the complainant refused to give the money, the respondent fondled her breasts and grabbed her buttock. The respondent was drunk.

[5] The incident was witnessed by a police officer on patrol. The respondent was arrested and taken to a police station.

[6] When a police officer questioned the respondent about the incident, he punched the officer on the jaw. The police officer received muscular skeletal injuries as a result of the assault.

[7] In mitigation the respondent said he was 32 years old and worked as a labourer at Water Authority of Fiji. He was a first time offender. He apologized for his conduct and asked for forgiveness.

[8] For each offence, the learned Magistrate picked 1 year imprisonment as his starting point. After adjusting for mitigating and aggravating factors, the learned Magistrate arrived at 10 months imprisonment for indecent assault and at 8 months imprisonment for assaulting police officer in due execution of his duty.

[9] The learned Magistrate considered the fact that the respondent was a first time offender. He suspended both terms of imprisonment for 3 years.

[10] The issue is whether the suspension of imprisonment terms was correct in law?

[11] The suspension of sentence was within the discretion of the learned Magistrate. But the discretion must be exercised judiciously based on established sentencing principles.

[12] In Herbert Wise v. The State Criminal Appeal No. HAA117 of 2005 (4 November 2005) the offender was sentenced to concurrent terms of 6 months imprisonment for resisting arrest, assaulting police officer in due execution of his duty, damaging property and throwing object after a trial. On appeal to the High Court, Shameem J stated:

"The sentence passed in total was not harsh or excessive. Although the injury received by PW2 is minimal, the act of assaulting a police officer is a serious one because it strikes at the authority of law enforcers. The charges justified a short custodial term of imprisonment."

[13] In the present case, the indecent assault on a young woman on a street was a serious offence. The offending by the respondent was further aggravated by a second assault on the police officer at the police station following his arrest. This kind of offending should attract an immediate custodial sentence. The offender's previous good character is only relevant to the length of the prison sentence, but it should not be used to justify suspending the sentence.

[14] I would have intervened but for the following circumstances. The respondent pleaded guilty in April 2009 and was released on bail. He was sentenced in August 2009. The State did not see fit to file a timely appeal against the sentence. The review of sentence was heard in December 2009. All these times, the respondent retained his employment with Water Authority of Fiji and had been of good behavior.

[15] In these circumstances, it would be unjust to impose an immediate custodial sentence.

[16] For these reasons, I do not interfere with the sentences imposed on the respondent in the Magistrates' Court.

Daniel Goundar
JUDGE

At Suva
18 January 2011

Solicitors:
Office of the Director of Public Prosecutions for State
Gledvil Law Firm for Respondent