State v Luvuiwai [2013] FJMC 311; Criminal Case 1454.2013 (12 August 2013)

IN THE RESIDENT MAGISTRATE'S COURT AT SUVA

Criminal Case No: - 1454/2013

STATE

V

TAWAKE LUVUIWAI

For Prosecution : - Cpl. Williame
Accused : - In person

SENTENCE

1. TAWAKE LUVUIWAI, you were charged in this Court for one count of Disorderly Conduct in a Police Station contrary to section 47 of the Police Act and one count of Assaulting Police Officer in Due Execution of His Duty contrary to section 277(b) of the Crimes Decree No. 44 of 2009.
   
2. You waived right to counsel and pleaded guilty for both counts on 09/08/2013. You also admitted the summary of facts.
   
3. Summary of facts showed that on 07/08/2013 in the Flagstaff Community Post you behaved in a disorderly manner. Also you assaulted one police officer causing her injuries.
   
4. I am satisfied your plea was made voluntarily and convict you for both counts.
   

The Law and the Tariff

5. Section 277(b) of the Crimes Decree sets down the maximum penalty for second count as 05 years imprisonment.
   
6. In State v Batiratu [2012] FJHC 864; HAR001.2012 His Lordship Chief Justice Anthony Gates said as follows.
   

"Assault on a police officer is listed under section 277 – headed "Serious Assaults". Serious assaults under this section attract a maximum sentence of 5 years imprisonment. 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 assaults committed during unlawful combinations to raise wages or respecting trade, business or manufacturing matters, or assaults against court process servers, those executing lawful distress, or assaults on persons carrying out duties imposed on them by law."

7. In the above case His Lordship said the tariff would be from 6-9 months imprisonment for this offence.
   
8. For the offence of Disorderly Conduct in a Police Station maximum penalty is 03 months imprisonment.
   

Aggravating factors

9. Aggravating factors are you were drunk at that time, you swore to the police officers, you tried to flee from that place and the victim got injured from your assault.
   

Mitigating factors

10. Mitigating factors are you are 20 years old, single, studying in FNU, First offender and seeks forgiveness. You also pleaded guilty at the first available opportunity.
    
11. For the Assaulting Police Officer (2nd count) I select 07 months as my starting point and add 06 months for aggravating factors to reach 13 months. Deduct 04 months for mitigating factors. Also deduct 1/3 from your sentence to reach 06 months.
    
12. This Court has the power to suspend a sentence which does not exceed a 02 years under section 26(2) (b) of the Sentencing and Penalties Decree.
    
13. His Lordship Chief Justice in State v Batiratu [2012] FJHC 864; HAR001.2012 further said "However the courts must protect police officers on duty. This arrest was not an easy one. It is not to be accepted that police officers will be assaulted during the course of their work. That is not part of their job."
    
14. This Court would agree with the above statement and see no reasons to fully suspend your sentence. But considering your young age, early guilty plea as well as past good behavior I believe you also need to be given a chance to reform.
    
15. Accordingly for the offence of Assaulting Police Officer in Due Execution of Her Duty you are sentence to 06 months imprisonment. From these you would be serving one month in prison and remaining 05 months will be suspended for 01 year.
    
16. For the offence of Disorderly Conduct in Police Station you are sentence to 01 month imprisonment to be served concurrently.
    
17. If you commit any offences during next 01 year you can be charged under section 28 of the Sentencing and Penalties Decree.
    
18. 28 days to appeal
    

12/08/2013

H. S. P. Somaratne
Resident Magistrate