State v Baleinabodua [2012] FJHC 981; HAC145.2010 (21 March 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 145 OF 2010S

STATE

vs

1. ANASA BALEINABODUA
2. TEVITA SERU
   

Counsels : Mr. L. Fotofili for State
Mr. S. Waqainabete for Accused No. 1
Mr. A. Vakloloma and Mr. H. Rabuku for Accused No. 2
Hearings : 20th to 29th February, 2012
Summing Up : 2nd March, 2012
Judgment : 2nd March, 2012
Sentence : 23rd March, 2012

SENTENCE

1. In a judgment delivered on 2nd March 2012, the court found the two of you guilty of the following offences, and also convicted the two of you on the same:
   
   • (i) Anasa Baleinabodua:
     
     • (a) Count No. 1: "Attempted Murder", contrary to sections 44 and 237 of the Crimes Decree 2009;
       
     • (b) Count No. 2: "Damaging Property", contrary to section 369(1) of the Crimes Decree 2009;
       
     • (c) Count No. 6: "Drunk & Disorderly", contrary to section 4 of the Minor Offences Act, Chapter 18.
       
   • (ii) Tevita Seru:
     
     • (a) Count No. 3: "Criminal Intimidation", contrary to section 375(1)(a) of the Crimes Decree 2009;
       
     • (b) Count No. 4: "Escaping from Lawful Custody", contrary to section 196 of the Crimes Decree 2009;
       
     • (c) Count No. 5: "Criminal Intimidation", contrary to section 375(1)(a) of the Crimes Decree 2009;
       
     • (d) Count No. 6: "Drunk and Disorderly", contrary to section 4 of the Minor Offences Act, Chapter 18.
       
2. The brief facts were as follows. Anasa is Tevita's son. The two reside together at the Southern Cross Building Compound, at Auto City Road, Raiwaqa. Tevita is the security guard at that compound. On 22nd July 2010, a Thursday, Tevita bought a carton of beer. After 3pm, Tevita drunk beer with his son Anasa, until 6pm. Thereafter, they proceeded to Raiwaqa Market bread shop. From there, they came towards the Sigatoka Electricity Shop. Both were holding a bottle of beer each, and laughing and yelling loudly. The commotion was heard by the police officers manning the Grantham Road Police Post.
   
3. PC 3736 Alvin Prakash came to check on the two. He saw what they were doing. He arrested Tevita Seru for drunk and disorderly. Anasa managed to flee from the scene. He went home, search for and got a cane knife. Anasa then returned to the police post. At that time, PC 3736 Alvin Prakash was questioning Tevita Seru for the drunk and disorderly matter. Anasa came through the Police Post front door. PC Alvin felt someone was behind him, and he turned around. At the same time, Anasa struck PC Alvin, on the front right side of the head. PC Alvin was severely injured in the head, skull and brain. He fell down. Anasa then smashed the Police Post window breaking four louvers. He went outside the Police Post, and challenged all police officers to a fight, while holding the cane knife.
   
4. Tevita came outside the Police Post, and stood with his son. He did nothing to stop him. Instead, he threatened Corporal 2646 Davendra Lal that if they tried to stop him and his son, they would get the same treatment PC Alvin got ie. they will be struck by the cane knife. Corporal Lal was alarmed when he heard Tevita's threat. Tevita and Anasa then fled from the Police Post. No authority was given to Tevita to leave the Police Post. In fact, he had escaped from lawful custody. On their way home, Tevita and Anasa met some men drinking yaqona along Auto City Road. One of the men was Pauliasi Lutu. Tevita told Anasa to strike Pauliasi with the cane knife. Pauliasi was alarmed when he heard Tevita's threat. The two then proceeded towards their home.
   
5. I have taken note of both accuseds' plea in mitigation. I have taken note of their antecedent reports, including the victim's impact report. I have noted the parties' sentencing submissions. I have noted that Anasa is a first offender, while Tevita has five previous convictions in the last 10 years. I have taken into account both parties' verbal submissions.
   
6. "Attempted murder" is a serious offence. Section 44(1) of the Crimes Decree 2009 reads as follows, "...A person who attempts to commit an offence is guilty of the offence of attempting to commit that offence and is punishable as if the offence attempted, has been committed..." For murder, the penalty is a mandatory sentence of life imprisonment, with a judicial discretion to set a non-parole period (section 237 of the Crimes Decree 2009). The parties never referred the court to "an attempted murder case" under the Crimes Decree 2009. However, Mr. S. Waqainabete referred the court to The State v Sachindra Nand Sharma, Criminal Case No. HAC 045 of 2008S, High Court, Suva, where His Lordship Mr. Justice S. Thurairaja, reviewed four cases of attempted murder under section 214 of the repealed Penal Code, Chapter 17. His Lordship set the tariff for attempted murder, as between 8 years to 11 years, after reviewing the four authorities. I accept the above tariff, but mindful of section 44(1) of the Crimes Decree 2009.
   
7. "Criminal Intimidation" is a serious offence, and it carries a maximum sentence of 10 years imprisonment, if the threat was intended to cause grievous hurt. The parties submitted no authorities on the tariff for this offence, but in my view, an acceptable tariff would be a sentence between 12 months and 4 years imprisonment. Serious cases should be given the sentence in the upper range, while less serious cases should be given sentences at the lower end of the scale.
   
8. "Damaging Property" is a summary offence, and it carries a maximum sentence of 2 years imprisonment. No tariff was supplied to the court by the parties. However, in my view, a suitable tariff would be a sentence between 3 months prison to 12 months prison. Serious cases should attract penalties in the upper range, while less serious cases attract the sentences at the lower end of the scale, including a non-custodial sentence.
   
9. "Escaping from lawful custody" is a summary offence, and it carries a maximum sentence of 2 years imprisonment. As to the tariff, I repeat the comments I made in paragraph 8 above.
   
10. "Drunk & Disorderly" is a minor offence, and on a first conviction, one is liable to imprisonment not exceeding one month; on a second conviction, imprisonment not exceeding three months, and on a third or more convictions, to imprisonment not exceeding one year. In all the above offences, the actual sentence will depend on the aggravating and mitigating factors.
    
11. The mitigating factors in your cases are as follows:
    
    • (a) Anasa Baleinabodua:
      
    • (i) At the age of 22 years, this is your first offending;
    • (ii) You are single, and you reached class 8 education;
    • (iii) According to your counsel, you are a victim of your parent's separation, and as such did not enjoy the influence of your mother;
    • (iv) You have been an outpatient of St. Giles Hospital since 2004, although you do not qualify under section 28(1) of the Crimes Decree 2009;
    • (v) You have been employed as a processor at Soluk Enterprises;
    • (vi) You are a member of Raiwaqa Seventh Day Adventist Church;
    • (vii) You have been remanded in custody from 26th July 2010 to 23rd March 2012, a period of approximately 1 year 8 months.
      
    • (b) Tevita Seru:
      
    • (i) You are 52 years old, with 2 sons, aged 17 and 22 years old;
    • (ii) You reached class 6 education;
    • (iii) You are a member of a large family;
    • (iv) You are employed as a security guard;
    • (v) You have been separated from your wife, and you have raised your two sons single handedly;
    • (vi) The court is aware of your difficulties as "mother and father" for Anasa, and looking after him, to see that his difficulties are resolved;
    • (vii) I am aware of your intentions to calm matters down on 22nd July 2010, but you could have gone further to prevent what is happening now, by advising Anasa, in a fatherly way, to stop what he did, at the time;
    • (viii) You are a member of the Raiwaqa Seventh Day Adventist Church;
    • (ix) You have been remanded in custody from 26th July 2010 to 10th September 2010, and from 2nd March 2012 to 23rd March 2012, a total period of approximately 5 months.
      
12. The aggravating factors in your cases are as follows:
    
    • (a) Anasa Baleinabodua:
      
    • (i) The injuries you caused to Police Constable 3736 Alvin Prakash, as described in his medical report, which was tendered as Prosecution Exhibit No. 1, and described by Doctor Bale Kurabui (PW13) in court, was certainly very serious. PW13 said, the skin to the head was cut completely. He said, the skull bone has been penetrated. There were bone fragments at the injury. In other words, the skull cracked. There were also brain injuries ie. bleeding past the first layer covering the brain, and pockets of air found in his brain. It was a miracle, Mr. Prakash lived;
      
    • (ii) The injury you caused on Mr. Prakash has affected him as of today. There is a scar on his head, and this has affected his confidences. He cannot now engage in hard contact sports, or train that hard, because of his injury. He now feels his nose is continually blocked and his eyes watery. He cannot stay long in the sunlight, because it causes him to faint. He has rapid mood swings ie. he gets angry and frustrated very fast – something he didn't have before the injury. In short, your actions Anasa has changed the quality of life of a person for ever.
      
    • (iii) In committing the "attempted murder", you used a cane knife. In other words, in resolving your problem on 22nd July 2010, you resorted to using a lethal weapon ie. a cane knife. The community cannot afford to have people who are used to resolving their problems violently, be let loose in the community.
      
    • (iv) The nature of your attack was a direct affront to the rule of law. When a police officer puts on his or her uniform, it represents that he or she is engaged in upholding the rule of law, which is designed to protect the community. Every citizens are required to co-operate with the police, for the purpose of their own protection. Those who confront police officers unlawfully, are simply asking for a custodial sentence. In your case, a custodial sentence is inevitable.
      
    • (v) To make matters worse, you attacked a police officer, in the course of his duties, in a Police Post. This aggravates the offence further. No-one is allowed to interfere with police officers, while they are doing their duties. To do so, is simply to ask for a prison sentence, especially when the offence is committed in a police post.
      
    • (b) Tevita Seru:
      
    • (i) Although the three assessors unanimously found you guilty as charged on all counts and the court agreed with them, in your written plea in mitigation, you continued to show defiance by not accepting their verdict. In other words, you are not remorseful. During the hearing and in your plea in mitigation, you continued to use the excuse that you were "merely trying to defend and protect (your) son", in committing the offences. If you were true to your word, the proceeding today would not have happened. Any father worth their salt, would not have allowed Anasa to do what he did on 22nd July 2010. For a start, knowing that he was an outpatient of St. Giles Hospital, you would not have let him drink alcohol from 3pm to 6pm on 22nd July 2010. Second, a father would not encourage his son to be drunk and disorderly. Third, a father would encourage his son to obey a police officer. Fourth, a father would advise his son to put the cane knife down, and not strike a police officer. Fifth, a father would not let a son run away, when the son has committed a crime. Sixth, a father would not encourage his son to strike a member of the public with a cane knife. In fact, Anasa's presence in court today, was largely because of your inactions on 22nd July 2010. Had you acted differently on that day, Anasa would not be in court today.
      
13. On the "attempted murder" charge (Count No. 1), pursuant to section 44(1) and 237 of the Crimes Decree 2009, I sentence Anasa Baleinabodua to the mandatory sentence of life imprisonment. On the non-parole period, I start with a sentence of 9 years imprisonment. For the aggravating factors, I increase the sentence by 6 years to 15 years imprisonment. For the mitigating factors, I decrease the sentence by 5 years to 10 years imprisonment. You are to serve a non-parole period of 10 years imprisonment.
    
14. On the "damaging property" charge (Count No. 2), I sentence Anasa Baleibodua to one month imprisonment.
    
15. On the "criminal intimidation" charge (Count No. 3), I start with a sentence of 12 months prison. For the aggravating factors, I increase the sentence by 12 months to 2 years imprisonment. For the mitigating factors, I decrease the sentence by 6 months to 18 months imprisonment. On Count No. 3, I sentence you Tevita to 18 months imprisonment.
    
16. On the "escaping from lawful custody" charge (Count No. 4), I repeat the process and sentence in Count No. 3. On Count No. 4, I sentence you Tevita to 18 months imprisonment.
    
17. On the "criminal intimidation" charge (Count No.5), I repeat the process and sentence in count No. 3. On Count No. 5, I sentence you Tevita to 18 months imprisonment.
    
18. On the "drunk and disorderly" charge (Count No. 6), Anasa is sentenced to 1 month in prison, while Tevita is sentenced to 3 months prison.
    
19. In summary, your sentences are as follows:
    
    • (i) Count No. 1 - Attempted Murder: Anasa - Mandatory life imprisonment, with a non-parole period of 10 years imprisonment.
      
    • (ii) Count No. 2 - Damaging Property: Anasa - 1 month imprisonment
      
    • (iii) Count No. 3 - Criminal Intimidation: Tevita - 18 months imprisonment
      
    • (iv) Count No. 4 - Escaping from lawful custody: - 18 months imprisonment Tevita
      
    • (v) Count No. 5 - Criminal Intimidation: Tevita - 18 months imprisonment
      
    • (vi) Count No. 6 - Drunk and Disorderly: Anasa - 1 month imprisonment Tevita - 3 months imprisonment
      
20. Given the principle of totality of sentence, all Anasa's sentence are made concurrent to each other. His total sentence is therefore the mandatory life sentence, with a non-parole period of 10 years imprisonment.
    
21. For Tevita, the sentence in counts No. 3 and 5 are made consecutive to each other, that is, a total sentence of 3 years imprisonment. This sentence is concurrent to the sentences in count Nos. 4 and 6. Tevita's total sentence is 3 years imprisonment. He is to serve a non-parole period of 2 years. I order so accordingly.
    

Salesi Temo
JUDGE

Solicitor for the State : Office of Director of Public Prosecutions, Suva
Solicitor for Accused No. 1 : Legal Aid Commission, Suva
Solicitor for Accused No. 2 : A. Vakaloloma, Barrister & Solicitor, Suva