State v Visikara [2012] FJMC 302; Criminal Case149.12 (16 November 2012)

IN THE MAGISTRATE'S COURT AT SUVA

Criminal Case No. 149 of 2012

STATE

–v-

MOSESE VISIKARA

For the State: WPC Fisher
For the Accused: Present

SENTENCE

1. MOSESE VISIKARA, you were charged with two counts of INDECENTLY INSULTING ANY PERSON: Contrary to Section 213 (1) (a) of the Crimes Decree Number 44 of 2009 and the Particulars of Offence is as follows;

Count One

MOSESE VISIKARA, on the 22nd day of June 2012, at Lami in the Central Division, with intent to insult the modesty of VANI RUVE SIKELI, uttered the words, "nomudou vale vaka na bai ni vuaka" meaning "your house is liked a pig sty" intending that such words should be heard by VANI RUVE SIKELI.

Count Two

MOSESE VISIKARA, on the 22nd day of June 2012, at Lami in the Central Division, with intent to insult the modesty of LEONE SIKELI, uttered the words, "oiko na dau vakadraudrau, oiko na luve ni sala" meaning "you are practicing witchcraft" and "you are the person who was born out of wedlock" intending that such words should be heard by LEONE SIKELI.

2. The summary of facts of the case that was submitted by the prosecution and admitted by you is as follows;

Count One

"On 22nd day of June, 2012 at about 1.30pm at Matainaborosisi Settlement, Vani Ruve Sikeli [PW-1], 14 years old, student of Matainaborosisi Settlement went to her home from her aunty's place after getting the mobile phone. [PW-1]'s uncle namely Mosese Visikara [Accused], 51 years old, watchman of Matainaborosisi Settlement called [PW-1]. The [Accused] was drunk told [PW-1] in Fijian "nomu dou vale vaka na bai ni vuaka" meaning "your house is like a pig sty". [PW-1] cried because she did not like the way the [Accused] talked about her house and she went to inform her father Leone Sikeli [PW-2]."

Count Two

"On 22nd day of June, 2012 at about 1.30pm at Matainaborosisi Settlement, Bilo leone Sikeli [PW-2], 51 years old, unemployed of Matainaborosisi Settlement went to confront Mosese Visikara [Accused] and they exchanged punches. The [Accused] shouted to [PW-2] saying in Fijian "oi ko na dau vakadraudrau, oi ko na luveni sala" meaning "you are practicing witchcraft, you are the person who was born out of wedlock." [PW-1] was insulted by the [Accused] and he reported the matter. On 23rd June 2012 the [Accused] was interviewed under caution and he admitted the allegation".

3. Mitigation Factors

I consider following mitigating factors which were brought before me in your oral mitigation submissions. That you are;

51 years of age, married with 04 children, working at a "Charter Unit" and earns $200.00 per fortnight. Further you have stated that the complainant, Leone threatened you with a cane knife, resulting you commit the offence

4. Statutory Indication

213. (1) of Crimes decree reads;" 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;

Maximum penalty for Indecently Insulting Any Person is imprisonment for one year.

5. Aggravating Factors

There is no any special aggravating factor as your act consist the element of offence.

6. Sentence

In the light of Sentencing Guidelines under section 4 (1) and (2) and General Sentencing Provisions under section 15(3) ) of the Sentencing and Penalties Decree consider an appropriate sentences on you.

You are a first offender. I note that you have pleaded guilty at the first available opportunity and you are remorseful. Considering all the circumstances of this case I sentence you pursuant to Section 15 (g) of the Sentencing and Penalties Decree as follows:

MOSESE VISIKARA, your conviction in this matter will stand for the next 06 months. You are ordered to enter into a bond for the sum of $500 to be bound over to this Court for the period of 06 months( 16-11-12 to16-05-13) to keep the peace and be of good behaviour for 02 counts of Indecently Insulting Any Person Contrary to Section 213 (1) (a) of the Crimes Decree Number 44 of 2009.
Should you honour this bond then at the end of the bond period of 06 months you will be discharged and you retain your clean record. The bond will be explained to you as well as the consequences of any breach.

28 days to appeal

..............................
Lakshika Fernando
Resident Magistrate

On this 16th day of November 2012.