State v Taumua [2012] FJMC 132; Criminal Case 649.2012 (19 June 2012)

IN THE MAGISTRATES COURT AT NASINU

Criminal Case No. 649/2012

STATE

-v-

LUISA TAUMUA

Police Constable Ravi Narayan for the Prosecution
The Accused appeared in person

SENTENCE

1. You were arrested and produced this afternoon for this offence. You said you are a Fiji origin Australian citizen and intent to leave country very soon. Therefore you requested that matter may be dealt with today itself. I accept your reaction and early plea of guilty, in return I sentence you today itself. You, LUISA TAUMUA, are here, to be sentenced on admission of guilt on your own accord for the following offences namely:

CHARGE:

Statement of Offence [a]

2. ANNOYING ANY PERSON: Contrary to Section 213 (I) (a) of the Crime Decree No. 44 of 2009.

Particulars of Offence [b]

3. LUISA TAUMUA, on the 16th of June 2012 at Nasinu in the Central Division with intent to insult the modesty of Jocelyn Lal uttered the word "Bajaru", meaning Bitch, "Fuck you" intending that such words be heard by the said Jocelyn Lal.

4. SUMMARY OF FACTS, which you have already admitted, can be reproduced as follows;

1. One Jocelyn Lal, PW1, 28 years of Lot 17 Law Place, Narere and one Luisa Taumua, Accused 1 of Lot 22 Woolrych, Cres Davidson 2085 NSW currently staying at Lot 17 Law Place, Narere.
   
2. One Saturday, 16.6.12 at about 1030 hours, PW1 was breast feeding her child when Accused 1 approached her from the window and swear at her.
   
3. Accused 1 is a Citizen of Australia who is on a vacation leave and visiting her family in Fiji at the mentioned address, Lot 17 Law Place, Narere. Accused 1 family is a tenant to PW1 and on Saturday Accused 1 approach PW1 and started swearing at her saying "Bajaru, Bitch, Fuck you" meaning Prostitute, female dog which really annoyed her.
   
4. PW1 informed the matter to her husband whereby her husband reported on behalf of her to the Nasinu Police Station. Accused 1 was brought to the Station and Caution Interviewed whereby she admit committing the offence.
   

5. Section 213 of the Crimes Decree defines the offence as;

"213. — (1) A person commits a summary offence if he or she, intending to insult the modesty of any person —

(a) utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by the other person; or

(b) intrudes upon the privacy of another person by doing an act of a nature likely to offend his or her modesty.

Penalty — Imprisonment for one year."

6. In State v Ketewai [2009] FJMC 26; Criminal Case 150.2009 (9 December 2009); said that the tariff for indecent exposure is between 9 months to 4 months. Tariff for annoying persons to be set but indecent exposure is somewhat similar to the offence and maximum penalty, I adopt this tariff to this case.

7. In your mitigation you said that you were provoked by the complainant. She is your relatives' land lady. You are on holidays. You both stay in the same compound. You explained the circumstances of offending. That morning, you were about to go to a village. You had to go beside PW1's house. The PW1 did not muzzle her dog and it ran after you. PW1 knew you were coming. When you visited last December, you said same thing happened. Argument was cropped up. You committed the offence. You showed remorsefulness. You tried to reconcile, but PW1 refused. You sought leniency and forgiveness. You are 44 years and mother of school going child. I am mindful of your mitigation.

8. In sentencing I draw my attention to sentencing principles which set out in Sentencing and Penalty Decree 2009.

Section 4(2) provides;"In sentencing offenders a court must have regard to —

(a) the maximum penalty prescribed for the offence;

(b) current sentencing practice and the terms of any applicable guideline judgment;

(c) the nature and gravity of the particular offence;

(d) the offender's culpability and degree of responsibility for the offence;

(e) the impact of the offence on any victim of the offence and the injury, loss or damage resulting from the offence;

(f) whether the offender pleaded guilty to the offence, and if so, the stage in the proceedings at which the offender did so or indicated an intention to do so;

(g) the conduct of the offender during the trial as an indication of remorse or the lack of remorse;

(h) any action taken by the offender to make restitution for the injury, loss or damage arising from the offence, including his or her willingness to comply with any order for restitution that a court may consider under this Decree;

(i) the offender's previous character;

(j) the presence of any aggravating or mitigating factor concerning the offender or any other circumstance relevant to the commission of the offence; and

(k) any matter stated in this Decree as being grounds for applying a particular sentencing option."

9. You are a first offender and frequent traveler. If any conviction entered against you, it may be harmed your freedom of moment. As a first offender, I think you should be given second chance.

10. In section 15 of sentencing and penalty Decree 2009 sets out range of sentencing orders. I reproduced it for clarity;

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 —

(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.

11. I further draw my attention to Section 15(3) of SENTENCING AND PENALTIES DECREE 2009 no: 42 of 2009

"As a general principle of sentencing, a court may not impose a more serious sentence unless it is satisfied that a lesser or alternative sentence will not meet the objectives of sentencing stated in section 4, and sentences of imprisonment should be regarded as the sanction of last resort taking into account all matters stated in this Part."

Now I turn to the Case law in this regard.

12. In Prasad v The State [1994] FJHC 132; Haa0032j.94s (30 September19994) S W Kepa J enunciated that the fact that Appellants are first offenders ought to be a strong mitigaitigating factor in their favour. A prison sentence ought to be the last resort after the court has explored and exhausted all other alternative sentences. (Emphasize is)

13. In > PrasaPrasad v State [1994] FJCA 19; Aau0023u.93s (24 May 1994), Fiji Court of Appeal held that ".... Courts ought to bend backwards to avoid immediate custodial sentence for first offender."

14. It has been noted in Prasad v The State [1994] FJHC 132 (Supra) that criminologists recognise that a prison sentenculd be the last resort especially where a first offendffender&#1 conc concerned unless the charge is very serious or the offender is dangerous and imprisonment is called for in the public interest or in the interest of the offender himself. (Emphasize ne).

15. As I As I noted in paragraph 5 in my judgment, you could be sentenced to one year imprisonment. But, I think your sentence should be proportionate to the offence. I am guided by above guideline judgments. Considering all these facts and law, since you are a first offender, I act under section 15(1) (f) of the Sentencing and Penalty Decree 2009. I therefore enter a non conviction, but you should pay $200 as fine. In default you serve 20 days imprisonment.

16. 28 days to appeal.

On 19th June 2012, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate