State v Peters [2013] FJMC 24; Criminal Case 1928.12 (23 January 2013)

IN THE RESIDENT MAGISTRATE'S COURT OF FIJI
AT SUVA

Criminal Case No: 1928/12

STATE

V

SAMUEL PETERS
KELVIN KUMAR
RONEEL KUMAR

Prosecution : Cpl Reddy, Police Prosecutor.
Accused : In person.

SENTENCE

1. You, Samuel Peters, Kelvin Kumar and Roneel Kumar are here today to be sentenced following the admission of 'guilt' on your own accord and free will in this Court on 31.12.2012, 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 (b) 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 and third accused were 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. All of you waived the right to have a legal counsel.
   
3. The agreed facts state that these offences were committed at around 07.00 am on 29.12.2012 in High Street, Toorak. The victim is a 26 year old police constable attached to Police Intelligence Assessment unit.
   
4. At 07.00 am the victim and another officer who were on duty had seen the three accused sitting on a footpath beside a car and consuming beer. The two officers have approached to caution them to leave. Then the accused 1 confronted and assaulted the constable on his face.
   
5. This indeed has given the right to arrest the first accused. First accused further resisted the victim by pulling his shirt. The struggle did not avail him but he committed the second offence.
   
6. Meanwhile the second and third accused interfered and held the victim constable from back to facilitate the first accused. Later all three accused were arrested and escorted to the Totogo police station. Both first and second accused admitted the offences in their caution interviews.
   
7. The prosecution submitted the medical report of the victim as a part of their submission. Though the degree is minor, doctor has observed visible injures from the victim.
   
8. The aforesaid Summary of Facts was admitted by each of you on your own free will. The Court is of the view that your pleas are free from any influence.
   
9. The Court proceeds to convict, Samuel Peters for 1st and 2nd counts that as per the charge sheet. At the same time Kelvin Kumar and Roneel Kumar (2nd and 3rd accused) are convicted for count 03.
   

The Law and Tariff

10. In the recent case of State v Batiratu [2012] FJHC 864; HAR001.2012 (13 February 2012) his Lordship The Chief Justice Gates held;
    

'Not only is assault on a police er not incl included 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 ih a way. Though the instant case may be one "not aggravatedvated 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&#on police case cases like those of domestic violence would be entirely unsuitable for termination by mere amicable settlement'.

11. Assault on a poofficer is listelisted in section 277 of the Crimes Decree – under the heading of "Serious Assaults ". This sectionacts a ms a maximum sentenc5 years imprisonment.
    
12. These ofs under section 277 are to provide protection for those pere 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 duringwful combicombinations to raise wages or respecting trade, business or manufacturing matters, or assaults against court ss serveservers, those executing lawful distress, or assaults on persons carrying out duties imposed on them by law.[ State v Batiratu]
    
13. In The State v Ligatabua Revisional Case HAR09.2009.2010 (18th January 2011) Goundar J considered review of a sentence of 8 months imprisonment suspended for 3 years for a count of assault po a e officer.
    
    
14. In olevue State Cr App. AAU0058.2005S (25th June 2007) the Accused had been conviconvicted cted of 3 traffic offences after trial including assault on police. He was sentenced to 9 months imprisonment for the assault on polihameem J in the High High Court had said the sentence was within the tariff, and in that assessment on further appeal, the Court of Appeal agreed.
    
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 lice. The range is b is between 6-9 months imprisonment. The perversity of the offence is its violent challenge to lawfulon taken by State servants, not in the extent of the assault. Of course the greater ater the violence and the injuries caused will lead to enhancement of sentence'.

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

AGGRAVATING FACTORS

17. Following Aggravating factors which are common for three of you. These facts justify the increase of your each sentence by another 4 months.
    
    1. The offence was committed beside a public road,
    2. No evidence of provocation on the part of the victim.
       

MITIGATING FACTORS

18. In mitigation, you Samuel Peters stated that you are 21 years old; first offender; remorseful for the incident; and promised not to reoffend.
    
19. Kelvin Kumar and Roneel Kumar submitted similar verbal submissions in mitigation, which they are 19 and 20 years old; single; first offenders; sought forgiveness from Court.
    
20. The Court nots that 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.
    
21. All 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.
    
22. Therefore, your final term of imprisonment now stands at 6 months for each count.
    
23. 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.
    
24. Although all three of you are first offenders it does not necessarily justify a dissension on suspending your sentences since your offences disturbed the orderly nature of the society. However having considered your young age and the timely plea I am of the view that you should be given another opportunity to reform.
    
25. Accordingly this court grants following orders,
    

Samuel Peters:	Count 01- 06 months imprisonment, and
	Count 02- 06 months imprisonment. Both sentence to run concurrently. And it is suspended for 3 years.
Kelvin Kumar:	Count 03-06 months imprisonment and it is suspended for 3 years.
Roneel Kumar:	Count 03-06 months imprisonment and it is suspended for 3 years.

26. Any subsequent conviction during the period of suspension will be a breach of suspended sentence imposed by this Court and a ground for separate prosecution against you.
    
27. You have Twenty eight (28) days to appeal against this order.
    

Pronounced in open court,

Yohan Liyanage
Resident Magistrate

23rd January 2013