State v Silvenusi [2012] FJMC 116; Criminal Case 82.2012 (7 February 2012)

IN THE RESIDENT MAGISTRATE’S COURT OF NAVUA

Criminal Case No: - 82/2012

STATE

V

BRIAN ALLAN SILVENUSI

For Prosecution : - Sgt. Lenaitasi
Accused : - Mr. Tawake from Legal Aid Commission

SENTENCE

1. You BRIAN ALLAN SILVENUSI were charged by this court, for the offence of Annoying Person, which is punishable under Section 213(1)(b) of the Crimes Decree No 44 of 2009.
   
2. You pleaded guilty for the said offence on the 25th May 2012 on your own will and accord. I am satisfied that you fully comprehended the legal effect of your plea and your plea was voluntary and free from influence.
   
3. Summary of facts, as admitted by you before the court, revealed that this offence was committed on the 13th of February 2012, at Tokotoko back Road, Navua.
   
4. Further, the summery of facts revealed, that you approached the complainant and said in Fijian language lako tu lewa lasulasu, meaning you are a liar.
   
5. Upon considering the summery of facts in this crime, I now direct myself to consider appropriate sentences on you upon considering the general principle of sentencing under Section 15 (3) and section 17 of the Sentencing and Penalties Decree and objective of sentencing under section 4 (1) and 4 (2) of the Sentencing and Penalties Decree.
   
6. The maximum punishment for annoying person is 1 year imprisonment.
   

Mitigating Factors

7. I take in to consideration the following points submitted by the learned duty solicitor from the Legal Aid Commission in his written mitigation submission.
   
   1. Married with children
   2. Seek forgiveness and promise not to reoffend
   3. Early guilty plea.
      
8. The learned duty solicitor also asked from this court to act under Sec 15(j) of the Sentencing and Penalties Decree and not to enter a conviction since you are planning to migrate and also that will affect your employment. The relevant sec says as follows.
   

(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;

9. When deciding to enter conviction or not the court is guided by the sec 16(1) of the Sentencing and Penalties Decree which read as follows.
   

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

10. I also take in to consideration following judgments in deciding your sentence. In State v Chand [1998] FJHC 247 it was held;
    

‘In discharging the Respondent without conviction the learned Magistrate was required to exercise discretion under Section 44 of the Penal Code. In terms of the section the Court must, leaving regard to the circumstances including the nature of the offence and the character of the offender be of the opinion that "it is inexpedient to inflict punishment". A discharge is the most lenient sentence that can be imposed for an offence. Indeed it is recognized by the wording of the section as being no punishment at all. Even a conditional discharge only requires that the offender commits no offence during a stipulated period - something that should not be a burden as it is what a responsible citizen is expected to do. The discretion should be exercised with great care and only in "very exceptional circumstances" (Police v McCabe [1985] 1 NZLR 361). It is, for example, appropriate in such cases as where the offence is trivial or only technical (R v Kavanagh - Court of Criminal Appeal (England) 16th May 1972), where the accused is morally blameless (R v O'Toole - (1971) 55 Cr App R 206) or where the accused has suffered in a manner that is wholly disproportionate to the offence committed (R v Kavanagh (supra) and Police v Roberts [1991] 1 NZLR 205)’.

11. 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.'

12. 19. In State v Batiratu [2012] FJHC 864; HAR001.2012 (13 February 2012) His Lordship the Chief Justice held;
    

'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.'

13. The Sec 15 of the Sentencing and Penalties Decree mentions the range of sentences available to the court. They are as follows.
    

(a) record a conviction and order that the offender serve a term of imprisonment;

(b) record a conviction and order that the offender serve a term of imprisonment partly in custody and partly in the community;

(c) record a conviction and make a drug treatment order in accordance with regulations made under section 30;

(d record a conviction and order that the offender serve a term of imprisonment that is wholly or partly suspended;

(e) with or without recording a conviction, make an order for community work to be undertaken in accordance with the Community Work Act 1994 or for a probation order under the Probation of Offenders Act [Cap. 22];

(f) with or without recording a conviction, order the offender to pay a fine;

(g) record a conviction and 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;

(h) record a conviction and order the discharge of the offender;

(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;

(j) without recording a conviction, order the dismissal of the charge; or

(k) impose any other sentence or make any other order that is authorised under this Decree or any other Act.

14. If the Court is satisfied to release an accused person without conviction as in Sec 15 (j0 the options are stipulated in section 45 of the Sentencing and Penalties Decree.
    

45. — (1) A court on being satisfied that a person is guilty of an offence may dismiss the charge and not record a conviction.

(2) A court, on being satisfied that a person is guilty of an offence, may (without recording a conviction) adjourn the proceedings for a period of up to 5 years and release the offender upon the offender giving an undertaking to comply with the conditions applying under sub-section (2), and any further conditions imposed by the court.

(3) An undertaking under sub-section (2) shall have conditions that —

(a) that the offender shall appear before the court if called onto do so during the period of the adjournment, and if the court so specifies, at the time to which the further hearing is adjourned;
(b) that the offender is of good behaviour during the period of the adjournment; and
(c) that the offender observes any special conditions imposed by the court.

(4) A court may make an order for restitution or compensation in accordance with Part X in addition to making an order under this section.

(5) An offender who has given an undertaking under sub-section (1) may be called upon to appear before the court —

(a) by order of the court;
(b) by notice issued by a court officer on the authority of the court.

(6) If at the time to which the further hearing of a proceeding is adjourned the court is satisfied that the offender has observed the conditions of the undertaking, it must discharge the offender without any further hearing of the proceeding.

15. You are not a first offender. But I noted that your last conviction was in 2005. Also I am mindful if a conviction is entered it would affect your employment as well as plans for migrations.
    
16. You have been charged with annoying person. The maximum punishment for the offence is only 1 year imprisonment. This shows that compared to other offences in the Criminal decree this is only a minor offence.
    
17. Therefore Considering the nature of the offence and the submission of the learned counsel of Legal Aid I think this is a fit and proper case to act under Sec 15(j) of the Sentencing and Penalties Decree.
    
18. Therefore under Sec 45(2) of the Sentencing and Penalties Decree, without recording a conviction I will adjourn your proceedings for 3 months. During that period you have to enter in to a bond of $300 to be in good behavior.
    
19. Also Sec 45(4) of the Sentencing and Penalties Decree also gives power to award compensation in addition to whatever orders are made under that Section. Therefore you are ordered to pay $200 as compensation to the complainant.
    
20. 28 days to appeal
    

07 February 2012

H.S.P.Somaratne
Resident Magistrate, Navua