State v Kedraika [2013] FJMC 323; Criminal Case 1656.12 (25 July 2013)

IN THE RESIDENT MAGISTRATE'S COURT AT SUVA

Criminal Case No. 1656 of 2012

THE STATE

–V-

RAVUAMA KEDRAIKA

For the State: PC Walter T.
For the Accused: In Person

SENTENCE

1. RAVUAMA KEDRAIKA, you have pleaded Guilty to one count of ESCAPE FROM LAWFUL CUSTODY Contrary to section 196 of the Crime Decree Number 44 of 2009 and one count of RESISTING ARREST Contrary to Section 277(b) of Crime Decree No. 44 of 2009. The particulars of offence as follows;
   

Count 1

On the 15th day of November, 2012 at Suva in the Central Division, being in the lawful custody of SPECIAL CONSTABLE NUMBER 1963 PENI TUKAI, escaped from such custody

Count 2

On the 21st day of November, 2012 at Suva in the Central Division, after being lawfully arrested by SPECIALCONSTABLE NUMBER 2666 SEMISI NADAKU, in due execution of his duty, resisted the said arrest.

2. You were convicted of the charge on your plea of guilty. I am satisfied that you are fully comprehended the legal effects and that your pleas were voluntary and free from influence.
   
3. The summary of the facts of the case that was submitted by the prosecution and admitted by you are as follows;
   

Count 1

On 15.11.12 at about 7.30am, SC 1963 Peni Tukai of Prisoners Management Team of Toga, Navatuyaga, Rewa was on duty. SC 1963 Peni Tukai escorted Ravuama Kedraika [Accused], from Naboro Maximum Prison to Suva to appear before court.The [Accused] appeared before a Magistrate Court for a case of aggravated robbery. The resident magistrate had ordered the accused to be taken to the Legal Aid Commission.

The [Accused] was handcuffed. At about 2.30pm after acquiring the service of Legal Aid, the accused was escorted out of the building. As soon as the [Accused] approached the front entrance of the office, he suddenly jumped over the fence and fled. SC 1963 Peni Tukai chased the accused and also called out for assistance. Subsequently SC 1963 Peni Tukai with the assistance of IP Manasa Sunaki and Cpl 2628 Dranivesi searched for the [Accused], but could not locate him. Subsequently, the matter was reported to Totogo Police Station.

Count 2

On 21.11.12 at about 2.00pm, SC 2666 Semisi Nadaku arrested the [Accused] at Jittu Estate. The [Accused] was interviewed under caution and he admitted the allegation. The [Accused] was charged for the offence of Escape from Lawful Custody Contrary to section 196 of the Crime Decree Number 44 of 2009. The [Accused] had 18 previous convictions.

4. Statutory Indication
   

Escape from Lawful Custody contrary to Section 196 of the Crimes Decree Number 44 of 2009

Section196 of the Crimes Decree N0.44 of 2009 provides;

A person commits a summary offence if he or she, being in lawful custody, escapes from lawful custody.

Maximum Penalty for the offence of Escape from lawful custody is Imprisonment for 2 years.

Tariff

The tariff for the offence of escape is between 6 and 12 months imprisonment (ViliameTuibua v. The State Criminal Appeal No.AAU0116 of 2007S). However, a sentence outside the range may be imposed if special circumstances are present. In Tuibua, the Court of Appeal said:

"Any sentence outside the usual tariff should however be regarded as exceptional and should be justified by the objective facts of the offence (for example, the degree of violence involved; the degree of damage to property; the degree of planning; the length of time at liberty before recapture; the reason for the escape; early guilty plea; voluntary surrender; other offending during the escape and whilst at large; age of the offender) and/or the subjective circumstances of the offender. As a general rule, when there is a joint escape by two or more prisoners, then the appropriate range of sentence will increase in severity to between 9 to 12 months imprisonment."

Resisting Arrest contrary to Section 277(b) of Crime Decree No. 44 of 2009

A person commits a summary offence if he or she;

Section 277 (b)of the Crimes Decree No.44 of 2009;assaults, resists or wilfully obstructs any police officer in the due execution of his or her duty, or any person acting in aid of such an officer;

Maximum Penalty for the offence of Resisting Arrest is Imprisonment for 5 years.

Tariff

The range is between 6-9 months imprisonment. It was held in State V David Batiratu Revision case No.HAR001/2012 his Lordship, where his Lordship Chief Justice Gates stated;"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.

In state V David Batiratu Revisional Case (supra) his Lordship further stated that: "These offences are included in the Crimes decree to give enhanced protection to persons acting for the community at large when carrying out their lawful duties.

In Herbert Wise V The State (2005) FJH C 411; HAAo117J.2005S (4th November 2005) For offence of serious assault to a police constable the accused was sentenced to 6 months imprisonment concurrently. Shameem J said; "There are no reasons to quash the conviction. The sentence passed in total was not harsh or excessive. Although the injury received by PW2 is minimal, the act of assaulting a police officer is a serious one because it strikes at the authority of law enforcers. The charges just fled a short custodial term of imprisonment."

In State v Ligatabua Revisional case HAR09.2010 (18th January 2011) Justice Goundar considered revised a sentence of 18 months imprisonment suspended for 3 years for a count of assault on a police officer. The Accused had pleaded guilty and had no prior convictions. Accused apologized and was remorseful. But Justice Goundar stated (at p.14) inter alia "The offending by the respondent was further aggravated by a second assault on the police officer at the police officer at the police station following his arrest. This kind of offending should attract an immediate custodial sentence. The offender's previous good character is only relevant to the length of the prison sentence, but it should not be used to justify suspending the sentence."

Aggravating Factors
According to the information revealed by the Summary of Facts placed before court; you escaped from lawful custody challenging the lawful authority of the Police. This kind of actions without any dought obstructs the smooth functioning of the criminal administration of justice system and public policy for the maintenance of law and order, thus the courts have to treat this kind of offences in every serious manner.

5. Mitigating Factors and Personal Background:
   

I consider the mitigation submissions brought before me. That you are;

25 years, single, unemployed, lives in Jittu Settlement, Seek courts forgiveness, Promises not to re-offend, only child in the family and seek lenient sentence.

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 I consider an appropriate sentences on you.

Having considered your guilty plea and the Aggravating and mitigating Factors in this case, I note that you have live 18 previous convictions.
In Tuibua v State AAU0116.2007 the Fiji Court of Appeal said that a sentence between 6 and 12 months imprisonment is an appropriate tariff for escaping from lawful custody and I pick my starting point as 12 months.

For aggravating factors I increase 03 months, to reach the period of 15 months. In considering your early guilty plea, I reduce 05 months and I further reduce 04 months for the mitigating factors leaving balance of 06 months. You do not entitle for further deduction for your previous clear records.

Accordingly, I sentence you 06 month imprisonment period with immediate effect for the offence of Escape from Lawful Custody contrary to Section 196 of the Crimes Decree Number 44 of 2009.

For the second count I pick 09 months. For the aggravating factors I increase 03 months, to reach the period of 12 months. In considering your early guilty plea, I reduce 04 months and I further reduce 04 months for the mitigating factors leaving balance of 04 months. You do not entitle for further deduction for your previous clear records as you have 18 previous convictions. Now your sentence reaches to 04 months imprisonment period.

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. See [State v David Batiratu Revisional Case HAR HAR001/2012]

Your actions on the day in question were serious and deserve a sentence of imprisonment.

Section 26 (2) (b) of the Sentencing and Penalties Decree provides a sentence which is below two years could be suspended by this court. Now, this court has to determine the imprisonment periods to be suspended or not.

I must consider the nature and gravity of the offences you committed. The offences are not trivial. The offences are serious because it obstructs the smooth functioning of the criminal administration of justice system and public policy for the maintenance of law and order of the country. And also to deter offenders or other persons from committing offences of the same or similar nature, more importantly to signify that the court and the community denounce the commission of such offences.

There are no exceptional circumstances which would justify a non-custodial sentence and also I do not see any compelling reasons to suspend your sentence.

Therefore, the imprisonment periods to be spend in custody with immediate effect

Both terms of imprisonment to be served consecutively pursuant to sec. 22(2) b of the Sentencing and Penalties Decree. For clarity I quote the section which reads as follows;

22.—(1) Subject to sub-section (2), every term of imprisonment imposed on a person by a court must, unless otherwise directed by the court, be served concurrently with any uncompleted sentence or sentences of imprisonment.

(2) Sub-section (1) does not apply to a term of imprisonment imposed—

(a). in default of payment of a fine or sum of money;
(b). on a prisoner in respect of a prison offence or as a result of an escape from custody;
(c). on a habitual offender under Part III;
(d). on any person for an offence committed while released on parole; or
(e). on any person for an offence committed while released on bail in relation to another offence.

28 days to appeal

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Lakshika Fernando
Resident Magistrate

On this 25th day of July 2013