State v Batiratu [2012] FJHC 864; HAR001.2012 (13 February 2012)

FIJI HIGH COURT
SUVA

Revisional Case No. 2012 HAR001/2012
Criminal Case No. 082/2012

STATE

V

DAVID BATIRATU

Gates CJ [From Suva Magistrates

24th January, 7th, 13th February

JUDGMENT ON REVISION

Mr J.B. Niudamu for the State
Mr S.K. Waqainabete for the Accused

[1] On 18th January 2012 a Resident Magistrate sitting in Suva passed sentence on the Accused that he enter into a bond in the sum of $500 to keep the peace and to be of good behaviour for 2 years. For the sake of the facts I shall refer to him, as Accused 1. One Semi Biaudamu Accused 2 was with him in the taxi, but was charged separately with obstructing a police officer.

[2] Accused 1 had pleaded guilty to one count of assaulting a Police Officer in the execution of his duty, said to be contrary to section 277(1)(b) of the Crimes Decree. The section was in fact section 277(b). There is no subsection (1). But nothing turns on this numbering error.

[3] In addition the Magistrate decided that this was a suitable case in which no conviction need be entered, saying inter alia that he was compelled to consider the fact that Accused 1was a semi-professional rugby player. The Magistrate wrote in his sentencing judgment "considering the fact that you might have a lot to deliver to the country as a rugby player, I do not wish to label you as a 'convict' ".

[4] The case was reported in the media. At that stage there may have been uncertainties as to the basis for the sentence. Accordingly I called for the record of the proceedings so that it could be examined. This is a power given to the High Court by section 260 of the Criminal Procedure Decree [formerly section 323 of the Criminal Procedure Code]. Section 260 follows the spirit of the supervisory jurisdiction in civil and criminal proceedings given to the High Court by section 6(3) of the Administration of Justice Decree 2009, which was formerly provided by section 120(6) of the 1997 Constitution.

[5] The relevant part of section 260 of the Criminal Procedure Decree states:

"260. (1) The High Court may call for and examine the record of any criminal proceedings before any Magistrates Court for the purpose of satisfying itself as to

(a) the correctness, legality or propriety of any finding, sentence or order recorded or passed; and

(b) the regularity of any proceedings of any Magistrates Court."

[6] I asked that the revisional papers be served on the Director of Public Prosecutions and on the Director, Legal Aid. A duty lawyer from Legal Aid had originally appeared for Accused 1 in the Magistrates Court.

[7] At the hearing I heard from both parties' counsel on the correctness or otherwise of the sentence. Besides the discretionary power of the court to hear parties on a revision [section 263] no order can be made to the prejudice of an Accused person unless he or she has had an opportunity of being heard either personally or by a lawyer in his or her defence [section 262(2)].

[8] A power of revision is provided by Section 262(1) for the High Court in the case of any order other than an order of acquittal, to alter or reverse such order.

The proceedings in the Magistrates Court

[9] Accused 1 first appeared in court on 16th January 2012. He pleaded guilty to the charge before the Magistrate, having waived his right to counsel. The summary of facts were marked in the record as having been "read, understood, and admitted."

[10] The situation at Samabula Police Station was slightly more complicated that morning than perhaps emerges from the sentencing judgment. A report had been lodged at the station that the Accused 1 had not paid his taxi fare. As the 29 year old Accused 1 was being escorted into the station by PC Wame, a more mature man of 40, Accused 2 got out of the same taxi and physically pushed the police officer away. He told the officer not to arrest Accused 1, and tried to prevent the arrest of Accused 1. He was warned several times not to do so. He did not desist and was therefore arrested for obstruction.

[11] Accused 1 was subsequently seated inside the police station awaiting process, and a non-payment of fare complaint was also lodged against Accused 2. Whilst this matter was being dealt with Accused 1 managed to get into the complainant taxi driver's taxi and tried to force the taxi driver to drive off. The driver refused. PC Wame then tried to bring Accused 1 out of the taxi and back inside the police station. As he did so, Accused 1 punched PC Wame on the left cheek.

[12] The victim was examined by a doctor at the hospital. The officer told the doctor that the injury had been caused in an assault "by a drunkard youth". The doctor noted the injury to be "tenderness and slight swelling on the left cheek bone below the left eye. No bruises." It was in the doctor's professional opinion "soft tissue tenderness and mild swelling." The police officer was dispensed analgesics and ice compress. There is no doubt this was a comparatively mild injury.

[13] On the day of sentence, a duty solicitor appeared for Accused 1 and mitigated for him. He informed the court that PC 2006 Wame Waqanaceva, the complainant was present in court. He said he had reconciled with Accused 1. The police officer confirmed with the Magistrate that he had "no issues left now" and that his injuries were "okay now."

[14] The Duty Solicitor said Accused 1 was about to sign a contract with an Australian Rugby team in March this year. He was a National Rugby player with a previous good character. The solicitor asked the court not to enter a conviction and for the Magistrate to consider section 16 of the Sentencing and Penalties Decree 2009.

Good behaviour bonds

[15] The learned Magistrate said he had regard to section 16(1)(a)(b) and (c) and also to section 15(1)(i) of the Sentencing and Penalties Decree.

[16] Those sections relevantly state as follows:

"Section 15. (1) If a court finds a person guilty of an offence, it may, subject to any specific provision relating to the offence, and subject to the provisions of this Decree---

(i) Without recording a conviction, order the release of the offender on the adjournment of the hearing, and subject to the offender complying with certain conditions determined by the court;"

"Section 16. (1) In exercising its discretion whether or not to record a conviction, a court shall have regard to all the circumstances of the case, including

(a) the nature of the offence;

(b) the character and past history of the offender; and

(c) the impact of a conviction on the offender's economic or social well-being, and on his or her employment prospects."

[17] In the written notes of the record, (not the typed sentencing judgment) the Magistrate had written "Proceedings are terminated accordingly." Since he was purporting to sentence under the provisions of section 15(1)(i) SPD 2009 there was no power to terminate prior to the end of the adjournment period. This was the period fixed for the duration of the good behaviour bond. Here it had been fixed for 2 years. There was no power to terminate the proceedings at the time of sentence.

[18] There may have been association here with reconciliation. Reconciliation is maintained in the Criminal Procedure Decree [section 154]; it was originally provided for in the Criminal Procedure Code at section 163. The promotion of reconciliation applies only to charges for offences of common assault, assault occasioning actual bodily harm, criminal trespass or damaging property. Section 154 of the Criminal Procedure Decree provides a much more detailed section than its predecessor, taking into account appropriate forms of apology, respect for the victim, mandatory counselling, rehabilitation, promises and undertakings to alter habits or conduct, such as the consumption of alcohol or the use of drugs. Most especially the court must be satisfied that reconciliation is in the interests of any victim of crime to proceed in such a manner. This approach gives proper protection to children, women, or vulnerable persons. It also indicates the need for awareness of improper pressures which might be exerted to force through reconciliation. I respectfully suggest the old cases, approving discounts in sentence for cases where the complainant wished to withdraw are no longer the correct approach': See Rt Peni Baleidraiba Kevetibau v State (1992) 38 FLR 110.

[19] Not only is assault on a police officer not included in the list of offences where reconciliation may be considered, the offence is one too serious by its nature for the matter to be settled in such a way. Though the instant case may be one "not aggravated by degree", it is not one "substantially of a personal or private nature." As a matter of public policy for the maintenance of law and order, assault on police cases like those of domestic violence would be entirely unsuitable for termination by mere amicable settlement.

[20] Section 15(1)(i) speaks of a release "on the adjournment of the hearing." Not only could the proceedings not have been terminated there and then, but there had to have been a date fixed when the Accused was ordered to come up for judgment or final discharge [section 45(2)(3)(5) and (6)]. This is one of the "certain conditions determined by the court." The order should have fixed the date of the adjournment which should have been recorded on the bond itself. Any breaches of the terms of the bond might have led to a forfeiture, partial or in full. There was no date of adjournment fixed, nor date recorded on the bond. This was incorrect.

[21] Neither counsel sought to defend a conditional discharge on a good behaviour bond without conviction entered, which was what this sentence was. Both counsel accepted that the cases made plain, for an offence of assault on police, imprisonment was the inevitable sentence. Defence counsel however urged leniency and sought a sentence of 3 months imprisonment suspended for 2 years.

Conditional discharge without conviction entered

[22] The Sentencing and Penalties Decree 2009 provides for discharges. It does so under the chapter heading "Dismissals, Discharges and Adjournments". It encapsulates much of the common law and case law of the last 30 years or so. Section 43 states:

"43. (1) An order may be made under this Part

(a) to provide for the rehabilitation of an offender by allowing the sentence to be served in the community unsupervised;

(b) to take account of the trivial, technical or minor nature of the offence committed;

(c) to allow for circumstances in which it is inappropriate to inflict any punishment other than nominal punishment;

(d) to allow for circumstances in which it is inappropriate to record a conviction;

(e) to allow for the existence of other extenuating or exceptional circumstances that justify a court showing mercy to an offender."

[23] Section 45 is the section governing discharges or releases without conviction.

[24] In State v Nayacalagilagi (2009) FJHC 73; HAC165.2007 (17th March 2009) Goundar J considered the principles upon which the discretion under the old section 44 of the CPC was to be exercised. His lordship summarized the position:

"Subsequent authorities have held that absolute discharge without conviction is for the morally blameless offender, or for an offender who has committed only a technical breach of the law (State v. Nand Kumar [2001] HAA014/00L; State v Kisun Sami Krishna [2007] HAA040/07S; Land Transport Authority v Isimeli Neneboto [2002] HAA87/02. In Commissioner of Inland Revenue v Atunaisa Bani Druavesi [1997] 43 FLR 150 HAA 0012/97, Scott J held that the discharge powers under section 44 of the Penal Code should be exercised sparingly where direct or indirect consequences of convictions are out of all proportion to the gravity of the offence and after the court has balanced all the public interest considerations."

[25] That summary had been referred to in the case of The State v Mosese Jeke Cr. App HAA 010.2010 (2nd July 2010). In that case on appeal Goundar J substituted a term of 6 months imprisonment suspended for 12 months. The court below had ordered an absolute discharge. The injuries – minor scratches and tenderness - which the complainant received had been caused by two blows from the blunt side of a cane knife. There was other mitigation. The intervention of the appeal court to impose a sentence of imprisonment was necessary to demonstrate the seriousness with which the court viewed the offence – act with intent to cause grievous bodily harm – together with the circumstance of aggravation, namely the use of the cane knife.

[26] Goundar J concluded [at para 11]:

"The court would not condone the use of a cane knife in a family conflict. The circumstances of the case warranted (the) imposition of a sentence on the respondent despite his previous good character."

[27] It is clear from the cases that the public interest in enforcement and deterrence is of some significance when considering whether a discharge can be imposed. Because of the need to enforce safety and public health or tax legislation, the public interest lies in imposing a penalty and not a discharge in such cases. Penalties, whether fines or terms of imprisonment may override mitigating factors such as previous good character or other personal issues: Foster v The State (supra); Commissioner of Inland Revenue v George Rubine [1995] HAC79 OF 1993; Tebbutt v Commissioner of Inland Revenue Cr. App. 108 of 1998S; LTA v Lochan Cr. App. HAA88.2002S (22nd November 2002).

[28] There were very special circumstances existing in The State v Nand Kumar Cr. App. No. HAA014 of 2000L and in considering an appeal against an absolute discharge for the offence of common assault, I had occasion to say:

"The court, in its sentencing remarks, said rightly, it was faced with "a very awkward situation" for this accused was facing dismissal from his employment if a conviction were to be entered. Nevertheless, a discharge without conviction being entered, was not an appropriate sentence here. Absolute discharges are appropriate only in a limited number of circumstances, such as where no moral blame attaches (R v O'Toole (1971) 55 Cr App p 206) or where a mere technical breach of the law has occurred, perhaps by imprudence without dishonesty (R v Kavanagh (unreported) May 16th 1972 CA)"

[29] The effect of the cases and the purport of the more detailed provisions of the Sentencing and Penalties Decree with regard to discharges can be summarized. If a discharge without conviction is urged upon the court the sentencer must consider the following questions, whether:

(a) The offender is morally blameless.

(b) Whether only a technical breach in the law has occurred.

(c) Whether the offence is of a trivial or minor nature.

(d) Whether the public interest in the enforcement and effectiveness of the legislation is such that escape from penalty is not consistent with that interest.

(e) Whether circumstances exist in which it is inappropriate to record a conviction, or merely to impose nominal punishment.

(f) Are there any other extenuating or exceptional circumstances, a rare situation, justifying a court showing mercy to an offender.

Equality before the law: Celebrity and service to the State

[30] These two issues must not be confused. Equality before the law is the overriding principle. It is a long standing principle contained in all of our Constitutions, but not always applied in practice. Celebrity status or fame, though strongly attractive, are not in themselves mitigating factors.

[31] But a history of good service to the State, combined with good character are both strongly mitigatory. Traditionally, fighting for one's country such as in World War II or serving with the military in Iraq or Afghanistan would have been considered service for one's country, and mitigatory. Merely being famous, would not, nor would it entitle such a person to special leniency.

[32] In The State v Viliame Cavubati Cr. App. HAA080 of 2001S Shameem J said [at p.14]:

"Further, the Respondent, who I was told is a well-known rugby player, ought to have remembered that in Fiji, rugby players are considered to be role-models particularly by the young and impressionable. I therefore do not consider that the fact that he is a well-known rugby player, to be a mitigating factor."

[33] Celebrity status may involve many facets. The person in question might be rich, famous, notorious, highly popular, a foreign dignitary, prominent in politics, an aristocrat or member of a royal household, or a star of film, television or the sporting world. It is essential that the courts treat such persons no differently from the ordinary person in the street. Before the law no more can be expected of them than from others. They do not come to the courts with a handicap nor with an edge on others. They are not to be penalised for their fame, nor given greater leniency for their importance and standing in the community. In R v Caird, Lagden and Others [1970] Crim. LR 656 at p.657 in a case involving university students the English Court of Appeal said that "a student could not claim preferential treatment or avoid a proper custodial sentence by virtue of his education or background."

[34] Whilst respecting this comparatively young Accused for seeking to advance his career and for playing for his country, those factors though commendable, can play little if any part in the final decision. The learned Magistrate was in error therefore in feeling obliged not to enter a conviction because of the Accused's likely contribution to Fiji's rugby team.

Assault on police: Sentencing

[35] Assault on police has always been regarded by the courts in Fiji as a serious offence. In Division 5 of the Crimes Decree are listed 4 types of assault. They are:

Sections 274 Common Assault

275 Assault causing actual bodily harm

276 Assaults on authorised persons protecting wrecks

277 Serious assaults

[36] Assault on a police officer is listed under section 277 – headed "Serious Assaults". Serious assaults under this section attract a maximum sentence of 5 years imprisonment. These offences under section 277 are to provide protection for those persons with specific duties to perform, such as to arrest a suspect, or for a police officer to carry out his or her duty, or for anyone aiding a police officer in that regard, and they cover assaults committed during unlawful combinations to raise wages or respecting trade, business or manufacturing matters, or assaults against court process servers, those executing lawful distress, or assaults on persons carrying out duties imposed on them by law.

[37] These offences are included in the Crimes Decree to give enhanced protection to persons acting for the community at large when carrying out their lawful duties. The Magistrate in his sentencing remarks rightly recognised that the Accused had violated "the accepted norms of society" in doing so, the failure to pay the taxi fare and then the assault on the police officer carrying out his duty. The Accused was not charged before the Magistrate with failing to pay the taxi fare. I have no information as to whether or not he has been separately charged with that offence. But for the assault on police, as with all assaults on officials performing lawful duties, the circumstance of aggravation is the fact that the victim was at the time of the assault, performing important duties on behalf of the community for which the law accords special protection.

[38] In R v Bell [1973] Crim. LR 318 the Accused aged 22 had no prior convictions and pleaded guilty to assaulting a police officer. The Accused had been running away when apprehended by a police officer. He had kneed the officer in the groin causing him to fall. The sentencing court had imposed an immediate custodial sentence of 2 months. The Court of Appeal referred to the defence suggestion that the offence was merely technical because the Accused was only struggling to escape. The court said that: "The sooner people being arrested appreciated that if they struggled they might be charged with assault, and that a custodial sentence was normal for a deliberate assault on a police officer, the better. B was exceedingly lucky to receive only 2 months."

[39] In Reg v David Hill [2007 EWCA Crim 3188 the Accused had pleaded guilty. He had been sentenced for the count of assaulting a police officer to 4 months imprisonment. He had been arrested for drunken driving, and then pushed one officer out of the way and punched a female officer in the chest and then in the eye. Eventually the male officer with a member of the public subdued the Accused. The Accused at first denied the offence and he had previous convictions for violence. The Court of Appeal upheld the sentence of 4 months.

[40] In Herbert Wise v The State [2005] FJH C 411; HAA0117J.2005S (4th November 2005) the Appellant had pleaded not guilty to several counts one of which was assault on police. He had pulled the officer's shirt, and punched him. The shirt was damaged. The Constable received injuries – tenderness on right chest and a bruise on the left knee. For this offence he was sentenced to 6 months imprisonment concurrent with other sentences. Shameem J said:

"There are no reasons to quash the conviction. 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."

[41] In The Queen v Thomas Cawley [2008] NICC43 the Accused was charged after a drinking bout which ended with a stabbing. Two police officers were assaulted in separate incidents. He swung a metal bar at one Constable's head which did not connect. From a roof he dropped an attic hatch door on another officer's head. It shattered around him and covered him in debris. Neither officer sustained injuries. It was a difficult arrest. The Accused was remorseful and pleaded guilty. He had been in trouble with the police before. He had a very difficult upbringing in care homes. The sentencing judge said: I take into account your personal circumstances. However in doing so I emphasise that this does not weigh heavily in reduction of penalty." The Accused received two terms of 3 months imprisonment consecutive to the other sentences but concurrent with each other.

[42] In Nakorolevu v The State Cr App. AAU0058.2005S (25th June 2007) the Accused had been convicted of 3 traffic offences after trial including assault on police. He was sentenced to 9 months imprisonment for the assault on police. Shameem J in the High Court had said the sentence was within the tariff, and in that assessment on further appeal, the Court of Appeal agreed.

[43] In The State v Ligatabua Revisional Case HAR09.2010 (18th January 2011) Goundar J considered review of a sentence of 8 months imprisonment suspended for 3 years for a count of assault on a police officer. It arose out of a questioning of the Accused by a police officer of an act of indecent assault which the officer had witnessed. The Accused thereupon punched the officer on the jaw. The officer received muscular skeletal injuries as a result. The Accused had pleaded guilty and had no prior convictions. He was remorseful and apologized. Goundar J said (at p.14):

"[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."

[44] For those reasons Goundar J decided against interfering with the suspended sentence, and the Accused may have been lucky in such an approach. The principle was clear however. Such offences must be met with the imposition of custodial sentences, and satisfactory mitigation is unlikely to change that.

[45] In Gabriel Waqa v The State Cr. App. HAA61 of 2009 the Magistrates Court file had been lost. Though reconstructed the facts do not appear to have been provided in sufficient details to the appeal judge. It is not clear to what extent the assault had been violent and what injuries were caused to the police officer. A binding over order was held by Madigan J to be unsuitable and instead a 1 year's imprisonment suspended for 2 years was substituted. If the assault had been at all serious then 1 year might be considered lenient: per Mishra Acting CJ in Peni Tuidaviko [1977] FJSC 52.

Conclusion

[46] The sentence ordered of binding over, the discharge without conviction, was not within the range and type of sentencing suitable for the offence of assault on police. The range is between 6-9 months imprisonment. The perversity of the offence is its violent challenge to lawful action taken by State servants, not in the extent of the assault. Of course the greater the violence and the injuries caused will lead to enhancement of sentence.

[47] The court takes into account the fact that the Accused readily pleaded guilty to the offence and has no record of previous offending. It is also borne in mind that he sought and obtained the forgiveness of the victim.

[48] However the courts must protect police officers on duty. This arrest was not an easy one. It is not to be accepted that police officers will be assaulted during the course of their work. That is not part of their job.

[49] The matter began with the allegation of the Accused's anti-social behaviour of using a taxi and not intending to pay for the fare. If that were accepted there would be no taxis available to take customers home from nightclubs or simply back home from town. Then the Accused tried to make off from the police station by forcing the driver to drive him out of the police station. This was not very clever though devious, but it added to the difficulties facing the police officers at the station that morning.

[50] Taking all mitigating matters into account, I arrive at a sentence in substitution at the lower end of the scale. A sentence of imprisonment is inevitable. It will be one of 4 months imprisonment [section 15(1)(a)]. It is not appropriate that that sentence be suspended.

[51] The orders of the court are:

(a) The sentence of the Magistrates Court is revised and set aside.

(b) In its place, a conviction is entered and a sentence of imprisonment of 4 months is substituted.

A.H.C.T. Gates
Chief Justice

Solicitors for the State : Office of the Director of Public
Prosecutions, Suva

Solicitors for the Accused : Legal Aid Commission, Suva