State v Nadan [2014] FJMC 124; Criminal Case 518.2013 (4 August 2014)

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“NAVINESH” you appear for sentence, in this court, after pleading guilty to the following charges;

DAMAGING PROPERTY:- Contrary to Section 369 (1) of Crimes Decree No. 44 of 2009.

“NAVINESH NADAN on the 22nd day of April, 2013 at Nasinu in the Central Division willfully and unlawfully damaged 2 glass plates and a glass cup valued at $20.00, the property of RAJNITA DEVI.”

ANNOYING ANY PERSON: - Contrary to Section 213 (1) (a) of Crimes Decree No. 44 of 2009.

“NAVINESH NADAN on the 22nd day of April, 2013 at Nasinu in the Central Division, with intent to insult the modesty of RAJNITA DEVI uttered the words “Maichod” meaning “mother fucker” intending that such words be heard by the said RAJNITA DEVI”.

ASSAULTING A POLICE OFFICER WHILST IN THE DUE EXECUTION OF HIS DUTY: - Contrary to Section 277 (b) of Crimes Decree No. 44 of 2009.

“NAVINESH NADAN on the 22nd day of April, 2013 at Nasinu in the Central Division, assaulted POLICE CONSTABLE 3984 IOSEFO LOBANALIKU whilst in the due execution of his duty”.

“NAVINESH NADAN on the 22nd day of April, 2013 at Nasinu in the Central Division, resisted arrest to POLICE CONSTABLE 3984 IOSEFO LOBANALIKU in the due execution of his duty”.

“Navinesh” I am satisfied that your plea is “unequivocal” and that you understand the consequences of your plea.

“On the 22nd day of April 2013, you had an argument with your wife – “Rajnita Devi” and as a result, you broke two glass plates and a galas cup valued at $20.00, by throwing on the floor. Thereafter you swore at her saying “Maichod”. The matter was promptly reported to Police Constable 3984 “Iosefo Labanaliku” who was on duty at “Kinoya” Community Police. Upon arrival at the scene, when you were approached in order to arrest, you started throwing punches at Police Constable 3984 “Iosefo Labanaliku” and pushed him away to resist arrest”.

The above mentioned summary of facts was read over to you in court. You admitted the facts.

The offence of “Damaging Property” contrary to section 369(1) of the “Crimes Decree” No.44 of 2009, carries a maximum sentence of two (02) years imprisonment.

There is no tariff for the offence of “Damaging Property”. {Gounder J in “Tikomainiusiladi vs. State” (2008) FJHC 18 H.A.A 134.2007}

But in “Navitalai vs. State”, Criminal Appeal No., HAA of 0084 & 85 of 2002, a sentence of 2 years imprisonment for the criminal damage of a door valued at $250.00 was reduced to 06 months imprisonment in appeal.

Furthermore, in “State vs. Naqia”, Criminal Appeal No, HAA 0023 of 2003, Shameem J upheld a term of 12 months imprisonment for causing criminal damage to “Monasavu” Dam, valued at $10,000.00 .
In the case of “Lasaro Tikomainiusiladi –v- State”, 2008 H.A.A 134/07S, a term of 18 months was reduced to 10 months imprisonment in the appeal for the willful and unlawful damage to a front left door of a taxi.

In the case of “Vilimoni Naua –v- Reginam”, (1972) S.C H.A.A 54/72l, it was held in appeal that 09 months sentence for damaging property by throwing stones at passing vehicles is not excessive.

The maximum sentence that could be imposed for the offence of “Annoying person” [Section 213 (1) (a) of Crimes Decree, 2009] is one year imprisonment.

There is no tariff for this offence too. In the case of “Iqbal Koya vs State” (1991) HAA 48/99B, a sentence of 5 months imprisonment has been substituted in the appeal for the offence of “Annoying person”. In the case of “Arun Kumar vs State”, (1999 HAA 3/95b), a period of 3 months imprisonment has been substituted in the appeal.

The maximum sentence for the offence of “Assaulting a police officer” is five (05) years imprisonment.

In Lalagavesi v State, [2010] FJHC 386; HAA 017.2010 (8 September 2010), Hon. Mr. Justice Paul Madigan
Held;

“A review of the authorities provides scant assistance in setting the proper tariff for assaulting Police Officers. In Peni Tuidaviko v R – Criminal Appeal No. 74 of 1977, Acting C. J. Mishra found that a 12 month sentence for an assault on an officer whose jaw was broken as a result of the assault was “anything but excessive”.

The maximum penalty for the offence being a term of five years, the proper range of sentence where no substantial injuries are inflicted should be between nine to twelve months, in recognition of the seriousness of disregard for authority. The term of fifteen months in this case where the injury to the officer was “tenderness to the central part of upper chest” is rather excessive and I would reduce the sentence accordingly to a term of nine months.

For the reasons given above the appeal against conviction and sentence is dismissed”.

The offence of “Resisting Arrest” too carries a maximum sentence of five (05) years imprisonment.

The tariff for “Resisting Arrest” is a sentence between 06 to 12 months imprisonment:

Section 4[1] of the Sentencing and Penalties Decree limits the purpose of sentencing an offender to the following grounds:

(c) to deter offenders or other persons from committing offences of the same or similar natures;

(d) to establish conditions so that rehabilitation of offenders may be promoted or facilitated;

(e) to signify that the court and the community denounce the commission of such offences; or

Section 4[2] of the decree outlines what a sentencing Court must consider when sentencing an offender:

(b) current sentencing practice and the terms of any applicable guideline judgment;

(d) the offender’s culpability and degree of responsibility for the offence;

(e) the impact of the offence on any victim of the offence and the injury, loss or damage resulting from the offence;

(f) whether the offender pleaded guilty to the offence, and if so, the stage in the proceeding at which the offender did so or indicated an intention to do so;

(g) the conduct of the offender during the trial as an indication of remorse or the lack of remorse;

(h) any action taken by the offender to make restitution for the injury, loss or damage arising from the offence, including his or her willingness to comply with any order for restitution that a court may consider under this Decree;

(j) the presence of any aggravating or mitigating factor concerning the offender or other circumstance relevant to the commission of the offence; and

(k) any matter stated in this Decree as being grounds for applying a particular sentencing option.

At this stage, I address my mind to the legal principles enunciated in the case of “Divendra Bija vs State” 43 FLR 144. In this case it was held “each case must be assessed and evaluated in its true merits and that the best guidance as always is for the courts to grasp the essence of established general principles of sentencing and apply them based on the fundamental premise that a sentence should not be harsh and excessive or wrong in principle”.

“Navinesh”, you pleaded guilty to the charge at the earliest opportunity and thereby saved courts time and resources.

It has been well recognized practice in common law to take into account a plea of guilty in the sentence. Most common Law Jurisdictions have codified this practice in sentencing statutes. In Fiji, the practice is a part of the common law.

In Navuniani Koroi v. The State Criminal Appeal No. AAU0037 of 2002S, the Court said:

“It has been the practice of the courts to reduce a sentence where the accused person has pleaded guilty. In most cases that is recognition of his contrition as expressed by an early admission and the fact that it will save the witnesses and the court a great deal of time and expense. In offences of a sexual nature, the amount of reduction is generally more because the plea saves the victim from having to attend the trial and relieve her experience in the witness box”.

The weight to be given to a guilty plea depends on a number of factors. Some of these factors were identified by Hunt CJ at CL in R V. Winchester (1992) 58 A Criminal Report 345 at 350:

"A plea of guilty is always a matter which must be taken into account when imposing sentence. The degree of leniency to be afforded will depend upon many different factors. The plea may in some cases be an indication of contrition, or of some other quality or attribute, which is regarded as relevant for sentencing purposes independently of the mere fact that the prisoner has pleaded guilty. The extent to which leniency will be afforded upon this ground will depend to a large degree upon whether or not the plea resulted from the recognition of the inevitable: Shannon (1979) 21 SASR 442 at 452; Ellis (1986) 6 NSWLR 603 at 604. The plea of guilty may also be taken into account as a factor in its own right independently of such contrition, as mitigation for the co-operation in saving the time and cost involved in a trial. Obviously enough, the extent to which leniency will be afforded upon this ground will depend to a large degree upon just when the plea of guilty was entered or indicated (and thus the savings effected): Beavan (unreported, Court of Criminal Appeal, NSW, Hunt, Badgery-Parker and Abadee JJ, 22 August 1991), at p.12.

In the “Principles of sentencing” second edition, by D.A.Thomas, at P.46 wrote

“The Final step in the process of calculating the length of tariff sentence is to make allowance for mitigation, reducing the sentence from the level indication by the facts of the offence by an amount appropriate to reflect such mitigating factors as may be present. Mitigating factors exist in great variety, but some are more common and more effective than others. They include such matters as the youth and previous of the offender....”

I find no material to constitute any “aggravating circumstances” other than those that are embedded in the offence itself. There is no evidence of injuries caused to the police officer. The prosecution too on the other hand did not advance any circumstances as “aggravating”.

After giving due consideration to the factual and legal background of this case, I select as my starting point, 08 months imprisonment for “Damaging Property”, 08 months for “Annoying any person”, 12 months imprisonment for “Assaulting the police officer” and ten (10) months imprisonment for “Resisting Arrest”.

I reduce two (02) months for the “mitigating” factors and one (01) month for the “early guilty plea”.

“Navinesh” you pleaded for forgiveness and applied for leniency in sentencing as you have now learnt a lesson and you will not re-offend.

You urged Court to consider your family commitments, personal circumstances and your desire to get into the mainstream of the society. You were forceful and potent in your Plea for a ‘Non Custodial Sentence’.

In this context, I direct myself to consider the appropriate sentence on your conviction pursuant to your plea of guilty. In doing so, I am guided by the “General Principles of Sentencing”.

Under Section 26 (2) (B) of Sentencing and Penalties Decree 2009, a Sentence below two (02) years could be suspended.

A discussion of the process which should be undertaken when a judicial officer is considering a suspended sentence is found in the decision of the New Zealand Court of Appeal in R v. Peterson [1994] 2 NZLR 533.

There may be differences of details between the Fijian and New Zealand statutes. However, the principles stated in Petersen are helpful. These principles are summarized in the head note thus:

“The principal purpose of [the relevant section] was to encourage rehabilitation and to provide the Courts with an effective means of achieving that end by holding a prison sentence over an offender’s head. It was available in cases of moderately serous offending but where it was thought there was a sufficient opportunity for reform, and the need to deter others was not paramount. The legislature has given it teeth by providing that the length of sentence of imprisonment was fixed at the time the suspended sentence was imposed, that it was to correspond in length to the term that would have been imposed in the absence of power to suspend, and that the Court before whom the offender appeared on further conviction was to order the suspended sentence to take effect, unless of the opinion it would be unjust to do so. So, there was a presumption that upon further offending punishable by imprisonment the term previously fixed would have to be served (seep. 537 line 4).

The Court’s first duty was to consider what would be the appropriate immediate custodial sentence, pass that and then consider whether there were grounds for suspending it.

The Court must not pass a longer custodial sentence that it would otherwise do because it was suspended. Equally, it would be wrong for the Court to decide on the shorter sentence than appropriate in order to take advantage of the suspended sentence regime (seep. 538 line 47, p. 539 line 5). R V. Mah-Wingh (1986) 5 Cr App R (S) 347 followed.

The final question to be determined was whether immediate imprisonment was required or whether a suspended sentence could be given. If, at the previous stages of the inquiry, the Court had applied the correct approach, all factors relevant to the sentence were likely to have been taken into account already; the sentencer must either give double weight to some factors, or search for new ones which would justify suspension although irrelevant to the other issues already considered. Like most sentencing, what was required here was an application of commonsense judgment, in which the sentencer must stand off and decide whether the imposition of a suspended sentence would be consonant with the objectives of the new legislation (see p.539 line 8, p. 539 line 37).

Petersen’s case was a prosecution appeal against leniency of sentence. Petersen had pleaded guilty at early opportunity, to reasonably serious drug offences: he was sentenced in the High Court to 18 months’ imprisonment suspended for 2 years plus 9 months’ periodic detention. He had no previous drug convictions and was aged 42 with family commitments. The New Zealand Court of Appeal considered Peterson’s offending so serious that it quashed the suspended sentence and imposed one of 18 months’ imprisonment concurrent on the several charges. The Court discussed at p. 539 the factors needing to be weighed in choosing immediate imprisonment or suspended sentence in these words:

“Thomas at pp.245-247 lists certain categories of cases with which suspended sentences have become associated, although not limited to them. We do not propose to repeat those in detail since broadly all can be analyzed as relating either to the circumstances of the offender or alternatively the offending. In the former category may be the youth of the offender, although this does not mean the sentence is necessarily unsuitable for an older person. Another indicator may be a previous good record, or (notwithstanding the existence of a previous record, even one of some substance) a long period of free of criminal activity. The need for rehabilitation and the offender’s likely response to the sentence must be considered. It is clear that the sentence is intended to have a strong deterrent effect upon the offender; if the latter is regarded as incapable of responding to a deterrent the sentence should not be imposed. As to the circumstances of the particular case, notwithstanding the gravity of the offence, as such there may be a diminished culpability, arising through lack of premeditation, the presence of provocation, or coercion by a co-offender. Cooperation with the authorities can be another relevant consideration. All the factors mentioned are by way of example only and are not intended as an exhaustive or even comprehensive list. The factors may overlap and more than one may be required to justify the suspension of the sentence in any particular case. Finally, any countervailing circumstances have to be considered. For example, in a particular case the sentence may be regarded as failing to protect the public adequately.

In concluding our consideration of the principles, we wish to add this. Understandably, the form of the legislation requires the sentencer to pass through a series of statutory gates, before reaching the point of availability of a suspended sentence. Subject to that however, like most sentencing what is required in the end is an application of commonsense judgment, in which the sentencer must stand off and decide whether the imposition of a suspended sentence would be consonant with the objectives of the new legislation. In many instances an initial broad look of this kind will eliminate the possibility of a suspended sentence as an appropriate response”.

D.A. Thomas in “Current Developments in Sentencing” (1969) Crim. L.R. 237 said:

“The court has refused to order suspension of a sentence passed for what amounted to a series of offences rather than an isolated one; in cases where the offence exhibits a degree of careful premeditation, or where the offence amounts to a serious breach of trust. The court is also reluctant to order suspension where the length of the term of imprisonment already makes substantial allowance for the factors which are urged as a basis for suspension.”

"The court must go through the process of eliminating other possible courses such as absolute discharge, conditional discharge, probation order, fines and then say to itself: this is a case for imprisonment, and the final question, it being a case for imprisonment, is immediate imprisonment required, or can I give a suspended sentence?"

In Fiji, concern has repeatedly been expressed by the courts about the over-use of the suspended sentence. Byrne J in Nand Kumar –v- The State Crim. App. No. HAA0115.2002L said –

"In line with other judges I have frequently expressed the view that suspended sentences generally are a snare and a delusion in that they tend to give a person convicted a false sense of security and leave him under the mistaken belief that he has not done any wrong because he has not been sent to prison"

"Once a court has reached the decision that a sentence of imprisonment is warranted there must be special circumstances to justify a suspension, such as an offender of comparatively good character who is not considered suitable for, or in need of, probation, and who commits a relatively isolated offence of a moderately serious nature, but not involving violence. Or there may be other cogent reasons such as the extreme youth or age of the offender, or the circumstances of the offence."

"Navinesh", when you were approached by Police Constable "Iosefo" in order to arrest, you started throwing punches at him, and pushed him away to resist arrest.

It may be that you were just acting out your frustrations after hearing your wife's extra marital affairs. Nevertheless, "Navinesh", lawlessness is not and cannot be the answer to any difficulty however great that might be.

Furthermore, this court does not in any way wish to condone alcohol fueled criminal activity.

The offence is a serious offence to the due administration of justice. It strikes the authority of law enforcers. It is a violent challenge to lawful action taken by a State Servant.

In State v Batiratu, [2012] FJHC; HAR 001. 2012 (13 February 2012), His Lordship, Chief Justice A. H. C. T.
Gates held:

"Assault on police has always been regarded by the courts in Fiji as a serious offence. In Division 5 of the Crimes Decree, listed 4 types of assault. They are:

Assault on a police officer is listed under section 277 – headed "Serious Assaults". Serious assaults under this Section attracts 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 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.

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. The Magistrate in his sentencing remarks rightly recognized that the Accused had violated "the accepted norms of society" in doing so, the failure to pay the taxi fare and then assault on the police officer carrying out his duty. The Accused was not charged before the Magistrate with failing to pay the taxi fare. I have no information as to whether or not he has been separately charged with that offence. But for the assault on police, as with all assaults on officials performing lawful duties, the circumstance of aggravation is the fact that the victim was at the time of the assault, performing important duties on behalf of the community for which the law accords special protection".

His Lordship further discussed the legal principles formulated in several decisions as follows;

In R v Bell [1973] Crim. LR318 the Accused aged 22 had no prior convictions and pleaded guilty to assaulting a police officer. The Accused had been running away when apprehended by a police officer. He had kneed the officer in the groin causing him to fall. The sentencing court had imposed an immediate custodial sentence of 2 months. The Court of Appeal referred to the defence suggestion that the offence was merely technical because the Accused was only struggling to escape. The Court said that: "The sooner people being arrested appreciated that if they struggled they might be charged with assault, and that a custodial sentence was normal for a deliberated assault on a police officer, the better. B was exceedingly lucky to receive only 2 months".

In Reg v David Hill [2007] EWCA Crim 3188 the Accused had pleaded guilty. He had been sentenced for the count of assaulting a police officer to 4 months imprisonment. He had been arrested for drunken driving, and then pushed one officer out of the way and punched a female officer in the chest and then in the eye. Eventually the male officer with a member of the public subdued the Accused. The Accused at first denied the offence and he had previous convictions for violence. The Court of Appeal upheld the sentence of 4 months.

In Herbert Wise v The State [2005] FJHC C 411; HAA0117J. 2006S (4th November 2005) the Appellant had pleaded not guilty to several counts one of which was assault on police. He had pulled the officer's shirt, and punched him. The shirt was damaged. The Constable received injuries – tenderness on right chest and a bruise on the left knee. For this offence he was sentenced t o 6 months imprisonment concurrent with other sentences. 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 justified a short custodial term of imprisonment".

In The Queen v Thomas Cawley [2008] NICC43 the Accused was charged after a drinking bout which ended with a stabbing. Two police officers were assaulted in separate incidents. He swung a metal bar at one Constable's head which did not connect. From a roof he dropped an attic hatch door on another officer's head. It shattered around him and covered him in debris. Neither officer sustained injuries. It was a difficult arrest. The Accused was remorseful and upbringing in care homes. The sentencing judge said: I take into account your personal circumstances. However in doing so I emphasize that this does weigh heavily in reduction of penalty". The Accused received two terms of 3 months imprisonment consecutive to the other sentences but concurrent with each other.

In Nakorolevu v The State Cr App. AAU0058.2005S (25th June 2007) the Accused had been convicted of 3 traffic offences after trial including assault on police. He was sentenced to 9 months imprisonment for the assault on police. Shameem J in the High Court had said the sentence was within the tariff, and in that assessment on further appeal, the Court of Appeal agreed.

In The State v Ligatabua Revisonal 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 police officer. It arose out of a questioning of the Accused by police officer of an act of indecent assault which the officer had witnessed. The Accused thereupon punched the officer on the jaw. The officer received muscular skeletal injuries as a result. The Accused had pleaded guilty had no prior convictions. He was remorseful and apologized. Goundar J said (at p. 14):" [13] in the present case, the indecent assault on a young woman on a street was a serious offence. The offending by the respondent was further aggravated by a second assault on 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.

I would have intervened but for the following circumstances. The respondent pleaded guilty in April 2009 and was released on bail. He was sentenced in August 2009. The State did not see fit to file a timely appeal against the sentence. The review of sentence was heard in December 2009. All these times, the respondent retained his employment with Water Authority of Fiji and had been of good behavior".

For those reasons Goundar J decided against interfering with the suspended sentence, and the Accused may have been lucky in such an approach. The principle was clear however. Such offences must be met with the imposition of custodial sentences, and satisfactory mitigation is unlikely to change that.

In Gabriel Waqa v The State Cr. App. HAA61 of 2009 the Magistrates Court file had been lost. Though reconstructed the facts do not appear to have been provided in sufficient details to the appeal judge. It is not clear to what extent the assault had been violent and what injuries were caused to the police officer. A binding over order was held by Madigan J to be unsuitable and instead a 1 year imprisonment suspended for 2 years was substituted. If the assault had been at all serious than 1 year might be considered lenient: per Mishra Acting CJ in Peni Tuidaviko [1977] FJSC 52.

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 police. The range is between 6-9months 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 violence and the injuries caused will lead to enhancement of sentence".

Having regard to the facts of this case, I apply the legal principles laid down in the above decisions.

Accordingly, I reject your plea for a "suspended term" since this case does not qualify such cause of action.

"Navinesh" I am mindful to the fact that you are a father of three (03) young children. Your wife is now with another person. You stay and support your three young children and elderly parents. They are the innocent victims of this crime.

I consider your plea for mercy and leniency because of a likelihood of your children, elderly parents suffering if sent to prison. I state that an offender should consider his/her background first before committing an offence. An offender's personal background and concerns should have little or no weight against the needs to impose a sentence or punishment that best befits an offence he has committed and the particular circumstances in which the offence was committed.

"Navinesh", your plea for leniency to avoid suffering to your elderly parents and three young children has no place. If at all that plea has little or no weight in determining an appropriate sentence for you.

".........in principle, the adverse effect upon the offenders family of the offender's conviction and sentence is not in itself a ground of mitigation ".

".........The general approach is to say that the offender should have considered these risks before embarking on the offending.........."

First Count	Damaging Property	05 months
Second Count	Annoying any person	05 months
Third Count	Assaulting a police officer in due execution of duty	09 months
Fourth Count	Resisting Arrest	07 months

The four offences are all part and parcel of the same incident and the terms are to be served concurrently.

Magistrates Court of Fiji

State v Nadan [2014] FJMC 124; Criminal Case 518.2013 (4 August 2014)