State v Baleinavanualala [2012] FJMC 117; Criminal Case 752.2012 (6 June 2012)

IN THE RESIDENT MAGISTRATE'S COURT OF FIJI ISLANDS
AT SUVA

Criminal Case No; 752/2012

STATE

V

WAISEA BALEIVANULALA

Prosecution : Cpl Reddy
Accused : In person

SENTENCE

1. You, Waisea Baleivanualala are here today to be sentenced following the admission of 'guilt' on your own accord and free will in this Court on 29.05.2012, for committing the offence of 'Assault Occasioning Actual Bodily Harm' under Sections 275 of the Crimes Decree 2009.
   
2. As per section 154(1) of the Criminal Procedure Decree the offence is reconcilable.
   
3. The complainant victim of this case has been a 47 year old taxi driver. On 28.05.2012 at around 7.45 am he received a call from you. While he was answering the phone you got in to his taxi. You approached him from the front passenger seat and started asking for your change of taxi fare which was not given to you on an earlier occasion.
   
4. The conversation converted in to a heated argument as the driver victim knew nothing about it. He started to drive the taxi away with you. At this moment you punched him on his left cheek and mouth.
   
5. The complainant victim sustained minor injuries due to the incident. The medical officer who observed the victim at 10.25 a.m on the same day has noted that the victim sustained a sore inner lower lip and tenderness on left cheek. The medical opinion confirms that these injuries were due to two punches. The matter had been reported to the police. Later you were arrested and interviewed under caution. During the caution interview you admitted the offence.
   
6. The Summary of Facts was read over, explained and you admitted it.
   
7. According to the Penal Code, Chapter 17, the offence of 'Assault Occasioning Actual Bodily Harm' under Sections 245 attracts a maximum sentence is 05 years imprisonment. The present offence even though brought under Section 275 of the Crimes Decree 2009 is similar.
   
8. The Tariff for 'Assault Occasioning Actual Bodily Harm' under Section 245 of the Penal Code (now repealed), varies from a suspended sentence to 09 months imprisonment. (per Goundar J in Jonethani Sereka v State [2008]HAA 027/08S, 25 APR 2008)
   
9. During your mitigation submission you said that you are a clerk at the Public Works Department. It appears that a recording of a conviction might affect your future prospects as a government servant.
   
10. Section 154(1) of the Criminal Procedure Decree 2009 promotes reconciliation in the cases of 'Assault occasioning actual bodily harm'. The circumstances of the case should overtake the two main hurdles of the section.
    

a) substantially of a personal or private nature; and

(b) not aggravated in degree —

11. In an event of reconciliation, section 154(3) of the Decree facilitates to either stay the proceedings for the offender to comply with any conditions which will be imposed by the Court, or to discharge the proceedings.
    
12. It is to be noted the complainant victim is a taxi driver. Taxi drivers are indispensable service providers of the present society. They provide transport facilities to the public anytime of the day. Vulnerability is part of their life due to the nature of the working conditions. The victim has denied any knowledge of 'balance taxi fare' of the accused. It seems that this incident does not carry any weight of 'personal or private in nature'. And also it cannot be considered as a matter that is 'not aggravated in degree'. Hence I am of the view that this is not a fit case for reconciliation.
    
13. Sentencing and Penalties Decree 2009 offers discretion to sentence an accused person without entering a formal conviction. Section 16 states,
    

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.

14. In State v Batiratu [2012] FJHC 864; HAR001.2012 (13 February 2012) His Lordship Chief Justice Gates set out a check list before entering a non-conviction to an accused person.
    

'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.'

15. Having considered the said guidelines I cannot simply conclude that this action is a technical breach of the law and it is trivial. Further mere fact that the accused is an accounts clerk of a government institution does not take him to any higher position to claim preferential treatment than any other ordinary person of the society. Thus a 'Discharge without a conviction' is not achievable.
    
16. In view of the foregoing, I convict you for the offence and select 06 months imprisonment as the starting point for your sentence.
    

AGGRAVATING FACTORS

17. You have committed the offence on a Taxi driver who is vulnerable due to his nature of employment. You have punched him twice while he was driving his taxi. These two circumstances will aggravate the offence.
    
18. I increase your sentence by another 03 months. Your period of imprisonment stands at 09 months now.
    

MITIGATING FACTORS

19. You said are 32 a year old; first offender; accounts clerk at PWD; earns about $ 320 fortnightly; married with two children; and that you are remorseful.
    
20. Your early guilty plea takes off 03months from your sentence. (1/3 of your total term of imprisonment- Akili Vilimone v State Cr.App. HAA 131/2007).
    
21. One month of the sentence is deducted to reflect your personal circumstances. Your term of imprisonment now stands at 05 months.
    
22. In terms of Section 26(2)(b) of the Sentencing and Penalties Decree 2009 a sentence below two years could be suspended. 'Suspended sentence' is also a mode of imprisonment. The only difference is you can serve it while leading your normal life. "Suspended sentence" was duced into English lish law as 'part of a wider search for ways of reducing the numbers in prison', and because of the 'strain which the prison population has suffered'.
    
23. Applying the said principle, I suspend your sentence of 05 months imprisonment for 18 months in view of the promise you have made to this Court.
    
24. If you commit any crime and if found guilty by a Court of law, whilst serving the suspended sentence period of 18 months, you will be imprisoned for a term of 05 months in terms of Section 28 of the Sentencing and Penalties Decree 2009.
    
25. Section 26 (3)(a)(b) of the Sentencing and Penalties Decree 2009, has been complied with, in delivering this sentence.
    
26. Twenty eight (28) days to appeal.
    

Pronounced in open Court,

YOHAN LIYANAGE
Resident Magistrate
06th June 2012