State v Nacama [2013] FJMC 393; Criminal Case 167.2013 (6 November 2013)

IN THE MAGISTRATE COURT OF FIJI
AT RAKIRAKI
CRIMINAL JURISDICTION

CRIMINAL CASE NO. 167/13

BETWEEN:

THE STATE

AND:

MELI NACAMA & RAICULA SAMUNU

Prosecution: WPC Poonam
Accused Persons: Ms Tarai (Legal Aid Office)

SENTENCE

1. Meli Nacama & Raicula Samunu you pleaded guilty to the offence of Indecently Annoying Any Person contrary to section 213(1)(a) of the Crimes Decree No. 44 of 2009.
   
2. Both of you pleaded guilty voluntarily to the charge and also admitted the fact's read and tendered by prosecution.
   
3. The Court being satisfied that your guilty pleas being unequivocal convicts you as charged.
   
4. On 22nd May 2013 between 12pm - 12.05pm at Waisavu Settlement Nalawa Ra the two of you and another person came to the complainants (Suliana Mereoni, 35yrs) place and confronted her about some rumors. There was a heated argument whereby the two of you swore at her uttering the words "magaitinamu" meaning your mothers vagina and also threatened to kick her mouth. The matter was reported to police whereby the two of you were arrested, interviewed under caution and charged.
   
5. Both of you were represented by Ms Tarai from Legal Aid Office and she submitted written and oral mitigations. I have considered the submissions and I take the following in your favor:
   
   • Guilty pleas.
   • First offenders.
   • Remorseful and requested for forgiveness.
   • Your backgrounds.
     
6. The aggravating factor would be the breach of trust and threat to cause harm to the complainant.
   
7. The offence of Indecently Annoying any person carries a maximum prison term of 1 year. The tariff in my view would range from between 1 month to 6 month's imprisonment depending on the circumstances of the case.
   
8. Counsel had suggested that no conviction be entered on the basis that offence is minor, your chances of going overseas and securing employment could be jeopardized. Section 15(j) of the Criminal Procedure Decree was highlighted and brought to the courts attention.
   
9. I agree that offence is minor in nature and accept that both offenders are young and first offenders. I also accept that their chances of going overseas and securing employment locally or overseas could be jeopardized if a conviction is entered. Their family background is also noted.
   
10. I must say that noble and worthy are the intentions or plans of the two offenders, nonetheless this type of offending is quite prevalent in community and public interest warrants some form of deterrence. In addition the circumstances they've brought to courts attention are not exceptional or compelling for the court to allow no conviction to be entered. Of course I can order a community work or some other form of penalty in accordance with statutory provisions, but to not enter a conviction would be wrong in principle. There are principles which clearly establish the circumstances in which no convictions could be entered.
    
11. In the case of State v Nand Kumar Cr App No. HAA014 of 2000L, the court had this to say: "The court in its sentencing remarks said rightly, it was faced with a very awkward situation for this accused was facing dismissal from his employment if a conviction were to be entered. Nevertheless a discharge without conviction being entered was not an appropriate sentence here. Absolute discharges are appropriate only in limited number of circumstances, such as where no moral blame attaches (R v O'Toole (1971) 55 Cr App p 206) or where a mere technical breach of the law has occurred, perhaps by imprudence without dishonesty (R v Kavanagh (unreported) May 16th 1972 CA)"
    
12. Further in State v David Batiratu Revisional Case No. HAR001/2012, the learned Chief Justice mentioned at page 8 paragraph 29 the following:
    

"The effect of the cases and the purport of the more detailed provisions of the Sentencing and Penalties Decree with regard to discharges can be summarized. If a discharge without conviction is urged upon the court the sentencer must consider the following question, whether:

(a) The offender is morally blameless.

(b) Whether only a technical breach in the law has occurred.

(c) Whether the offence is of a trivial or minor nature.

(d) Whether the public interest in the enforcement and effectiveness of the legislation is such that escape from penalty is not consistent with that interest.

(e) Whether circumstances exist in which it is inappropriate to record a conviction, or merely to impose nominal punishment.

(f) Are there any other extenuating or exceptional circumstances, a rare situation, justifying a court showing mercy to an offender."

13. Bearing in mind the above principles it cannot be said that the offenders are not morally blameless. Their actions were deliberate. It cannot be said that only a technical breach of the law has occurred.
    
14. The offence may be minor however as I have already mentioned offence is prevalent in community. Thus public interest dictates that there is some form of deterrence to ensure enforcement and effectiveness of the law. In my view such enforcement and effectiveness is ensured by entering of a conviction. I decline to order that no conviction be entered. A conviction will have to be entered against the two offenders.
    
15. I commence your sentences at 6 months. For the aggravating factors I increase your sentences by 2 months. Your sentences are 8 months.
    
16. I reduce your sentences by 2 months for other mitigating factors and this being your first offences. For your guilty pleas I further reduce your sentences by 2 months.
    
17. Your final sentences are now 4 months imprisonment each.
    
18. In my view both of you need to be given an opportunity to reform yourselves hence your sentences will be suspended.
    
19. I therefore order that your sentences of 4 months each be suspended for 2 years. If any of you commit any offence within the operational period, you'll be further charged for breaching this suspension order and if convicted, you'll be made to serve the 4 months with any other punishment imposed in that new offence.
    
20. 28 days to appeal.
    

Samuela Qica
Resident Magistrate

6th November 2013