State v Seninawanawa [2010] FJMC 124; Criminal Case 418 of 2010 (14 October 2010)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal Case No 418/10

BETWEEN

THE STATE

AND

1. TAITO SENINAWANAWA
2. PAULA NAMUA
4. DWAYNE HICKS

SENTENCE

1. You, Taito Seninawanawa, Paula Namua and Dwayne Hicks are to be sentenced upon pleading guilty, to escaping from lawful custody contrary to Section 196 of the Crimes Decree and you, Paula Namua and Dwayne Hicks are to be sentenced for serious assault contrary to Section 277(b) of the Crimes Decree.
   
2. The maximum sentence for escaping from lawful custody is 2 years and 5 years imprisonment for serious assault.
   
3. In Tuibua v State AAU0116.2007 the Fiji Court of Appeal said that a sentence between 6 and 12 months imprisonment is an appropriate tariff for escaping from lawful custody and I pick my starting point as 9 months. For serious assault I pick my starting point as 12 months.
   
4. It was revealed that on the 18th July 2010 three of you with two others escaped from the lawful custody of Prison officer Sgt 905 Timoci Wainiqolo. On that day you were released from the cellblock for afternoon tea. After tea, it was found that three of you and two others were gone missing.
   
5. You, Taito Seninawanawa were produced to court on the 20th July 2010 after you were arrested by the Police at Lomolomo village.
   
6. On the 24th July 2010 at 2.00 am as a result of a joint operation by the Police and Prison officers, Paula Namua and Dwayne Hicks were arrested at a house in Banaras with other persons who harboured the escaped prisoners. You, Paula Namua resisted PC 4434 Josaia whilst effecting arrest. You, Dwayne Hicks resisted PC 3074 Colati whilst effecting arrest. However with the assistance of other Police officers and the Prison officers you two, were arrested.
   
7. Escaping from lawful custody has now become a frequent offence and during this year more than 10 cases of escapes were reported in this court itself. It should be noted that this is an alarming trend and it is high time for the relevant authorities to take appropriate actions to minimize this type of incidents. It appears that most of the times prisoners escape due to the lackadaisical approach of the officers who are responsible for keeping them in custody. In this incident 5 prisoners escaped and it is surprising to see, that it is not at least stated in the summary of facts as to how the prisoners escaped when they were having tea.
   
8. In every occasion, when prisoners escape from the prison or from the court premises, the community is alarmed through media. Although it could be helpful to locate them and to take safety measures, it should be noted that it creates a physiological trauma in the minds of the public as well. Secondly this kind of incidents invariably traumatizes the victims of the respective cases. It need not be mentioned that this trend of escapes disturb the normalcy and safety of the society. What is more alarming in most of the instances is that, such escaped prisoners do re offend whilst they are at large. There is no doubt, that the public is keen to know what steps do the relevant authorities take regarding those who are responsible for allowing room for such escapes except in unavoidable instances.
   
9. Having said that I will now consider the aggravating features in this case. The following aggravating features were observed in this case;
   
   1. You escaped from prison with a gang of men.
   2. You escaped in a well organized and in a planned manner.
   100. You Paula Namua came on fresh charges for robbery with violence allegedly committed during the time you were at large.
   4. You Paula Namua and Dwayne Hicks resisted arrest with a gang of men
      
10. Apart from the above aggravating factors, the state has to unnecessarily spend resources to re arrest persons who escape. It appears that in this case a joint operation had to be conducted to arrest Paula Namua, Dwayne Hicks and the others. On the other hand escape from custody is a direct hindrance and a challenge to the administration of justice system.
    
11. Section 4(2) of the sentencing and Penalties Decree sets out the matters a court has to take in to consideration when sentencing a person. Accordingly the previous character of an offender too can be considered when sentencing. When the previous characters of three of you are concerned it appears that you have a known history for escaping from lawful custody.
    
    1. You, Taito Seninawanawa have two previous convictions for escape from lawful custody.
    2. You, Paula Namua have 3 pending cases for escape from lawful custody apart from 2 previous convictions for the same offence.
    100. You, Dwayne Hicks have one pending case for escape from lawful custody apart from one previous conviction for the same offence.
         
12. The court has a duty to impose sentences which are strong enough to deter you and the others who are minded to indulge in this type of impermissible and coward actions. For the aggravating circumstances I enhance the sentences for escape from lawful custody by 12 months for the three of you. I enhance the sentences for serious assault for Paula Namua and Dwayne Hicks by 9 months.
    
13. In mitigation you, Taito Seninawanawa tendered a written mitigation. You said;
    
    1. That you deeply regret about what you did
    2. That you express your apology
    100. Seek leniency and forgiveness
    4. The injuries you received is itself a punishment
    5. That you are 32 years, married with one year old daughter
    6. That your wife is unemployed and welfare of the family is affected
    7. That the stay in prison made you a better and a stronger person
    8. That you realized the Christian believes and values
    9. That a non custodial or non institutional sentence be imposed.
       
14. You, Taito Seninawanawa asked that the time you were in remand may be deducted. You have been in custody since 20th July 2010 in this case. You pleaded guilty saving the time of this court. It should be also noted that you have 19 previous convictions out of two are for escape from lawful custody.
    
15. On behalf of Paula Namua the Legal Aid Counsel said in mitigation that;
    

" you are 25 years. Married. Has 2 year old son. Was working for your father. You were intimidated and tortured by the police. You were treated at the hospital for the injuries caused by police assault. You did not want to go to prison. That's why you escaped. You confessed at the caution interview. Your wife and son solely rely on you. You learnt a lesson. A non custodial sentence would give you a chance to correct yourself. You were in remand for 12 months. Ask for forgiveness. Seek leniency. You are extremely remorseful."

16. In this case you tendered an early guilty plea. It appears that you are remorseful of your actions. Although you said you were in remand for 12 months it should be noted that in this case you have been in custody only since 26th July 2010. You, Paula Namua have 29 previous convictions. Out of those two are for escaping from lawful custody and two are for resisting arrest.
    
17. You, Dwayne Hicks tendered a written mitigation. You said the following things in your mitigation;
    
    1. That you deeply regret about your action
    2. That you don't agree with certain leadership style and decisions of our newly appointed officer in charge
    100. That you are remorseful and seek leniency
    4. That you will refrain from escape from lawful custody again
    5. That the injuries you suffered during the arrest is itself a big punishment
    6. That you realize that you have to distant and disassociate from certain friends
    7. That you seek a non custodial sentence or a non institutional sentence.
       
18. You tendered an early guilty plea saving the time of this court. Further I have considered the time you were in custody for this case. You have 33 previous convictions and out of those one is for escape from lawful custody.
    
19. However having considered the mitigatory circumstances of each of you and specially taking into account the time you were in remand, I decide to deduct the sentences for escape from lawful custody by 9 months and for serious assault by 9 months.
    
20. Accordingly I impose the sentences on you in the following manner;

First count – I impose 12 months imprisonment on each of you.
Second count – I impose 12 months imprisonment on Paula Namua
Fourth Count- I impose 12 months imprisonment on Dwayne Hicks

21. It should be noted that all of you have previous convictions for escape from lawful custody. Therefore it appears that all of you are not strangers to this system. Yet your conduct does not show that you have learnt lessons from your previous convictions. The court has to be very firm when the administration of justice process is violated and brought to mockery by this type of repeated actions.
    
22. As per Winter j in Viliame Cavuilagi –v- State [2004] HAA031/04 Judgment of 14 April, 2004; "Repetitive, recidivist offending must inevitably lead to longer sentences of imprisonment unless the offender can demonstrate special circumstances that motivate the court to sentence otherwise. This principle meets three of society's needs. Firstly it might act as a deterrent to the offender and others who fall into a pattern of semi-professional crime to support themselves. Second society is entitled to sideline or warehouse repeat offenders out of the community for longer periods of time so that at least during the term of incarceration they cannot wreck havoc on the lives of law abiding citizens. Thirdly offenders deserve punishment that fits the circumstances of the crime."
    
23. Therefore I do not think the circumstances of this case warrant this court to impose non custodial sentences on you. Further I order that the sentences imposed for the first and the second counts on Paula Namua and sentences imposed on the first and the fourth counts on Dwayne Hicks should run consecutively.
    
24. Accordingly you should serve the following terms;
    

Taito Seninawanawa – 12 months imprisonment

Paula Namua – a total of 2 years.

Dwayne Hicks – a total of 2 years.

25. The court recognizes the necessity to promote rehabilitation and correction of young offenders like you. The court has a duty to leave some room for offenders to reap fruits of their true and genuine willingness to correct themselves. Thus I order that you Taito Seninawanawa are eligible for parole after 6 months. You Paula Namua and Dwayne Hicks are eligible for parole after 15 months.
    

28 days to appeal.

Rangajeeva Wimalasena
Resident Magistrate
Lautoka.

14.10.2010