State v Sugu [2012] FJMC 181; Criminal Case 1417.2007 (30 July 2012)

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

Criminal Case No: 1417/2007

STATE

V

TEVITA SUGU

Prosecution: Cpl Reddy, Police Prosecutor.

Accused: In person.

SENTENCE

1. You, Tevita Sugu are here today to be sentenced following the admission of 'guilt' on your own accord and free will in this Court on 13.07.2012, for committing following offences.
   
   1. Throwing an Object contrary to section 105 of the Penal Code Act 17,
      
   2. Resisting Arrest: contrary to section 247 (b) of the Penal Code Act 17,
      
   3. Assaulting a Police Officer in Due Execution of His Duty: contrary to section 247 (b) of the Penal Code Act 17.
      
2. This matter was initially called before this Court on 30.07.2007. You have pleaded not guilty and however after numerous adjournments the case was called on the 13th of July 2012 for trial. You then informed your willingness to change the plea. You further mentioned that this decision is free from any threat, promise or other influence.
   
3. You waived the right to have a counsel.
   
4. I now move to discuss the Summary of Facts tendered by the Prosecution.
   
5. These offences were committed at around 06.20 pm on 07.04.2007 at block 04, Four-story Building, Nairai Road in Raiwai. The victim is a 31 year old police special constable attached to the Raiwaqa police station.
   
6. The victim constable and his team were on mobile patrol covering the Raiwaqa Operational area. Whilst on their patrol they spotted a warrantee near block 5 area. Warrantee fled from the scene and the officers followed him to block 4 where they met you.
   
7. You started to throw empty beer bottles at the victim. However the victim constable managed to apprehend you with the help of others. Then you resisted arrest. This was extended to a fist fight. You threw several punches on victim's face.
   
8. You were arrested and escorted to the Raiwaqa police station where your caution interview was recorded.
   
9. The prosecution submitted the medical report of the victim as a part of their submission. The doctor has observed injuries of blunt force on victim's face and left hand. There were no fractures or any dislocations. The aforesaid Summary of Facts was admitted by you on your own free will.
   
10. The Court convicts you for the each offence of the charge sheet.
    
11. In the recent case of State v Batiratu [2012] FJHC 864; HAR001.2012 (13 February 2012) his Lordship Chief Justice Gates held;
    

'Not only is assault on a policecer not includedluded in the list of offences where reconciliation may be considered, the offence is one too serious by its nature for the matter to be settled in such a way. Though the instane may be one "not aggravateavated by degree", it is not one "substantially of a personal or private nature." As a matter of public policy for the maintenance of law and order, assault oice clies like those of d of domestic violence would be entirely unsuitable for termination by mere amicable settlement'.

1. As2">Assault on a police officer is lisned in section 247 of the Penal Code Act 17 under the heading of "Assaults ". The section attracmaximuaximum sentence of 5 years imprisonment whilst section 105 of the Penal Code Act has imum punishment of 3 years ears for Throwing Object.
   
13. These offences under section 277 (present section in Crimes Decree 2009) are to provide protection for those persons with specific duties to perform, such as to arrest a suspect, or for a police officer to carry out his or her duty, or for anyone aiding a police officer in that regard, and they cover assaults committed during unlacombicombinations to raise wages or respecting trade, business or manufacturing matters, or assaults against court process servers, those executing l dist or assaults on persons carrying out s ties ties imposimposed on them by law.[State v Batiratu]
    
14. In The State v Ligatabua Revisional Case HAR09.2010 (18th January 2011) Goundar J considered review of a sentence of 8 months imprisonment suspended for 3 years for a count of assault on a polificef.
    
15. In Nakorolevu v The State Cr App. AAU0058.2005S (25th June 2007) the Accused had been convicted of 3 traffic offences after trial including assault on police. He was sentenced to 9 months imprisonment for the assault on police. Shamein the High High Court had said the sentence was within the tariff, and in that assessment on further appeal, the Court of Appeaeed.
    
16. His lordship Chief Justice discussed the tariff for the offence in the case of Batiratu. It was held;
    

'The sentence ordered of binding over, the discharge without conviction, was not within the range and type of sentencing suitable for the offence of assault on police. Thge is betwebetween 6-9 months imprisonment. The perversity of the offence is its violent challenge to lawful action taken by State servants, not in the extent of the assault. Of course the greater the violence and the injuries caused will lead to enhancement of sentence'.

17. In Dau v Reginam [1977] FJSC 83; Criminal Appeal 091 of 1977 (29 September 1977) it was held by the Supreme Court that a sentence of 12 months' imprisonment is in excessive for a case of throwing object but that a deterrent sentence is called for. The sentence of 12 months' imprisonment was set aside and in lieu thereof the appellant was sentenced to 6 months' imprisonment.
    
18. Accordingly, in this case, I select 6 months imprisonment for each offence as the starting point for your sentence.
    

AGGRAVATING FACTORS

19. Following noted aggravating factors are common for all three counts. These facts justify the increase of your each sentence by another 6 months.
    
    1. The offence had been committed to divert an arrest of a warrantee,
       
    2. No evidence of provocation by the victim,
       
    100. Victim sustained minor injuries.
         
20. Now the sentence for each offence stands at 12 months.
    

MITIGATING FACTORS

21. In mitigation, you stated that you are 26 years old; a serving prisoner; committed the offence under the influence of liquor; remorseful for the incident; sought forgiveness from the victim.
    
22. I observe that you have pleaded guilty before a full hearing of the case. But this was after 5 years from the day it was first called. Hence you are not entitled for any reduction as you have utilized the Court's valuable time in full.
    
23. You are not a first offender. Hence you are not entitled to the credit that is given to an offender with previous good character.
    
24. Therefore, your final term of imprisonment stands at 12 months for each count.
    
25. I am mindful of the fact that a sentence below two (02) years could be suspended in terms of Section 26(2)(b) of the Sentencing and Penalties Decree 2009,
    
26. Having considered the circumstances of the offence I am not inclined to suspend your term of imprisonment. Your act disturbed the orderly nature of the society.
    
27. Accordingly I sentence,
    

Tevita Sugu: Count 01- 12 months imprisonment.

Count 02- 12 months imprisonment.

Count 03- 12 months imprisonment.

Sentence will run concurrently.

28. You have Twenty eight (28) days to appeal against this order.
    

Pronounced in open court,

Yohan Liyanage
Resident Magistrate

30th July 2012