State v Draika [2012] FJMC 83; Criminal Case 584.2012 (4 May 2012)

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

Criminal Case No: 584/12

STATE

V

KABU DRAIKA & INOKE TITOKO

Prosecution : Cpl Temesi, Police Prosecutor.
First Accused : In person.
Second Accused : In person.

SENTENCE

1. You, Kabu Draika and Inoke Titoko are here today to be sentenced following the admission of 'guilt' on your own accord and free will in this Court on 24.04.2012, for committing following offences. The first accused had been charged for two counts.
   
   1. Assaulting a Police Officer in Due Execution of His Duty: contrary to section 277 (e) of the Crimes Decree No 44 of 2009,
      
   2. Resisting Arrest: contrary to section 277 (b) of the Crimes Decree No 44 of 2009,
      

The second accused was charged for,

1. Obstructing a Police Officer in Due Execution of His Duty: contrary to section 277 (b) of the Crimes Decree No 44 of 2009,
   

2. Both of you waived the right to have a counsel.
   
3. At the outset I must emphasize on the charging section of the first count. Section 277 (e) of the Crimes Decree makes an assault on 'any person' who is in the execution of any legal duty, an offence. Whereas section 277 (b) specific on an assault or resist of a 'police officer'. It is to be noted that both these subsections are under the heading of 'Serious Assaults'.
   
4. In my view there is no irregularity on the first count as it covers any person who is executing any duty imposed by law.
   
5. With that now I move to discuss the Summary of Facts tendered by the Prosecution.
   
6. These offences were committed at around 10.00 pm on 21.04.2012 in front of Vatuwaqa bus stop at Fletcher Road, Suva. The victim is a 42 year old police constable attached to Nabua police station.
   
7. At 10.00 pm Caubati police post received information of a group of youth making excessive noise at Vusavusa roundabout located in Vatuwaqa. The victim and other officers who were on a mobile patrol had drove their police vehicle to check on this information.
   
8. When the victim constable got off from the vehicle, he witnessed that the group were having alcohol. When he approached and tried to check them accused 1 confronted and assaulted the constable on his head and chest.
   
9. This indeed has given rights to arrest the first accused. First accused further resisted the victim by pushing him away. The struggle did not avail him but he committed the second offence.
   
10. Meanwhile the second accused interfered and pushed the victim constable to facilitate the first accused. Both accused were arrested and escorted to the Nabua police station. Both of you admitted the offences in your caution interviews.
    
11. The prosecution submitted the medical report of the victim as a part of their submission. The doctor has not observed any visible injures from the victim nor made any entries on pains.
    
12. The aforesaid Summary of Facts was admitted by each of you on your own free will.
    
13. I have convicted You, Kabu Draika for 1st and 2nd counts that you were charged with. At the same time I convict Inoke Titoko (2nd accused) for count 03.
    
14. 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 , assault on police cases liose of d of domestic violence would be entirely unsuitable for termination by mere amicable settlement'.

15. Assau on a pola police officer is listed in section 277 of the Crimes Decree – under the heading of "Serious Assaults<60;". This section attracts a maximum sentence of 5 years imprisonment.
    
16. These offences under section 277 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 assa#160; committed durd during unlawful combinations to raise wages or respecting trade, business or manufacturing matters, or assaults against court procerveservers, those executingul distress, or assaultsts rsons carrying out duti duties imposed on them by law.[ State v Batiratu]
    >
17. 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 polificer.
    
    
18. In Nakorolevu v The State Cr App. AAU0058.2005S (25th June 2007)
19. 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 p. The range is b is between 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 the violence and the injuries caused will lead to enhancement of sentence'.

20. Accordingly, in this case, I select 6 months imprisonment for each offence as the starting point for your sentence.
    

AGGRAVATING FACTORS

21. I consider following Aggravating factors which are common for both of you. These facts justify the increase of your each sentence by 4 months.
    
    1. The offence had been committed during night hours,
    2. At a public road,
    100. No evidence of provocation on the part of the victim.
         

MITIGATING FACTORS

22. In mitigation, you Kabu Draika stated to Court that you are 21 years old; first offender; remorseful for the incident; sought forgiveness from the victim; married with a child.
    
23. Inoke Titoko submitted that he is a 20 year old single; first offender; un aware what the law was; sought forgiveness from Court.
    
24. I observe that both of you have pleaded guilty before a full hearing of the case hence you are entitled for a reduction of 03 months of your terms of imprisonment which now stands to 07 months.
    
25. Both of you are first offenders; hence you are entitled to the credit that is given to an offender with previous good character. I reduce one month from the above sentence.
    
26. Therefore, your final term of imprisonment now stands at 6 months for each count.
    
27. 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,
    
28. Although both of you are first offenders it does not justify a dissension on suspending your sentences since your offences disturbed the orderly nature of the society.
    
29. Accordingly I sentence,
    

Kabu Draika: Count 01- 06 months imprisonment.
Count 02- 06 months imprisonment to run concurrently.

Inoke Titoko: Count 03-06 months imprisonment.

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

Pronounced in open court,

YOHAN LIYANAGE
Resident Magistrate

04th May 2012