State v Morris [2015] FJMC 85; Criminal Case 215.2015 (17 July 2015)

IN THE RESIDENT MAGISTRATE'S COURT AT SUVA

Criminal Case No. 215/15

STATE

V

ROGER ILIESA MORRIS

PC PELA for the prosecution
The Accused appeared in person

SENTENCE

1.You, Roger Iliesa Morrisare here, to be sentenced on admission of guilt on your own accord for the following offences namely:

COMMON ASSAULT Contrary to Section 274 of Crimes Decree No. 44 of 2009. And ANNOYING ANY PERSON Contrary to Section 213 (1) (a) of the Crimes Decree No. 44 of 2009.

2. RogerIliesa Morris on 2/5/14 during the lunch break at the Hotel slapped the bum of Merewalesi Tabu . And on the 7th day of June 2014 at Suva in the Central Division with intent to insult the modesty of poked her anus intending that such action felt by the said Merewalesi Tabu.

3. You pleaded guilty for the above mentioned 1st and 2nd counts before this court.

4. Summary of Facts, which you admitted, can be reproduced as follows; On 2/5/14 at the Southern Cross Hotel, Suva one Roger Iliesa Morris B1 39 years Hotel Cordinator of Navosai slapped the bum of one Merewalesi Tabu A1, 25 years, Admin Assistant of Lot 41 Pandit Ami Chand Street, Kinoya and again on 7/6/14 B1 poked A1's anus from the top of her clothes at the Southern Cross Hotel, Suva. On 2/5/14 during the lunch break at the Hotel A1 was helping the Food and Beverage Department in cleaning the dishes when B1 approached her from the back and slapped her bum. It was painful to A1 and she did not like it and at the same time felt ashamed since some of her workmates were watching when B1 did this to her and this incident were witnessed by two staffs namely Suliana Kaci A3 Food and Beverage staff of Kanace Road, Valelevu and one Kacilala Delai A2 Supervisor of Stage 4 Cumming. Again on 7/6/14 when A1 reported in the morning to work at 8.00 am when B1 called her to come to his office so A1 followed B1 to his office and on their way he asked her to check the Hotel Quick Pay System Salary at eh reception area. Then A1 walked in front of B1 and at the same time he poked his finger into her anus from top of her clothes. It was very painful to A1 and she turned around and was very angry on B1 and asked him of why he did that to her and he just smiled and walked away without saying a word. Then A1 reported the matter to Police and investigation was carried out as both A1 and B1 are workmates and A1 was medically examined on 9/6/14.On 8/1/15 B1 was interviewed under caution by WDC 3614 Ana Leba A5 of the Crime Branch and he admitted slapping A1's bum and stated that he did it in a playful way and denied poking the anus of A1.B1 was later charged for the offence of First Count: Common Assault Contrary to Section 274(1) of the Crimes Decree No. 44 of 2009 and Second Count: Indecently Insulting or Annoying Any Person: Contrary to Section 213(1)(b) of the Crimes Decree No. B1 was bailed out for the sum of $300.00 to attend the Suva Magistrate Court at 9am on 2/2/15.

5. Sections213, 375of the Crimes Decree define the offence of annoying and common assault as;

"213. — (1) A person commits a summary offence if he or she, intending to insult the modesty of any person —

(a) utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by the other person; or

(b) intrudes upon the privacy of another person by doing an act of a nature likely to offend his or her modesty.

Penalty — Imprisonment for one year"

"375. — (1) A person commits a summary offence if he or she, without lawful excuse —

(a) threatens another person or other persons (whether individually or collectively) with any injury to —

(i) their person or persons; or

(ii) their reputation or property; or

(iii) to the person, reputation or property of anyone in whom that person is or those persons are interested —

with intent –

(iv) to cause alarm to that person or those persons; or

(v) to cause that person or those persons to do any act which that person is or those persons are not legally bound to do; or

(vi) to omit to do any act which that person is or those persons are legally entitled to do—

as the means of avoiding the execution of such threat; or

(b) directly or in directly, knowingly causes a threat to be made to another person or other persons(whether individually or collectively) of any injury to

(i) their person or persons; or

(ii) their reputation or property; or

(iii) to the person, reputation or property of anyone in whom that person is or those persons are interested —

with intent –

(iv) to cause alarm to that person or those persons; or

(v) to cause that person or those persons to do any act which that person is or those persons are not legally bound to do; or

(vi) to omit to do any act which that person is or those persons are legally entitled to as the means of avoiding the execution of such threat.

Penalty — Imprisonment for 5 years."

6. Under the Crimes Decree No. 44 of 2009, the maximum sentence for Common Assault is 1 year imprisonment an indecently Annoying Any Person is 1 year imprisonment. According to the case of State v Sokiveta [2013] FJHC 407 the tariff for Common Assault according to Justice De Silva is:

"The tariff for Common Assault is with discretion of court and in most cases the sentence is suspended".

In the case of State v Nacama [2013] FJMC 393, for indecently Annoying Any Person it was stated as follows:

"The tariff in my view range from between 1 month to 6 months imprisonment depending on the circumstances of the case".

In State v Ketewai [2009] FJMC 26; Criminal Case 150.2009 (9 December 2009); said that the tariff for indecent exposure is between 9 months to 4 months. Tariff for annoying persons to be set but indecent exposure is somewhat similar to the offence and maximum penalty.

7. In your mitigation you said that your 40 years of age, married with 4 children3 of them are schooling. And you employed as a Customer Interactions Agent. You are not a first time offender however that the last and only previous conviction was over 10 years ago and therefore your previous conviction will not be taken into account for sentencing. You Seek Forgiveness. You seek Non-custodial sentence. You are remorseful. You sought forgiveness and leniency of this court. You are the sole breadwinner of the family including grandfather and blind sister.

8.you pleaded guilty at earliest opportunity therefore you deserves a one third deducted from your sentence( if any) and this stated in the case of Vilimone v State [2008] FJHC 12; HAA 131-132.2007.

9. In sentencing I draw my attention to sentencing principles which set out in Sentencing and Penalty Decree 2009.Section 4(2) provides;"In sentencing offenders a court must have regard to —

(a)the maximum penalty prescribed for the offence;

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

(c)the nature and gravity of the particular offence;

(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 proceedings 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;

(i)the offender's previous character;

(j) the presence of any aggravating or mitigating factor concerning the offender or any 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."

10. In section 15 of sentencing and penalty Decree 2009 sets out range of sentencing orders. I reproduced it for clarity;

Sec:15. — (1) If a court finds a person guilty of an offence, it may, subject to any specific provision relating to the offence, and subject to the provisions of this Decree —

(a)record a conviction and order that the offender serve a term of imprisonment;

(b) record a conviction and order that the offender serve a term of imprisonment partly in custody and partly in the community;

(c)record a conviction and make a drug treatment order in accordance with regulations made under section 30;

(d) record a conviction and order that the offender serve a term of imprisonment that is wholly or partly suspended;

(e)with or without recording a conviction, make an order for community work to be undertaken in accordance with the Community Work Act 1994 or for a probation order under the Probation of Offenders Act [Cap. 22];

(f)with or Without recording a conviction, order the offender to pay a fine;

(g) record a conviction and order the release of the offender on the adjournment of the hearing, and subject to the offender complying with certain conditions determined by the court;

(h)record a conviction and order the discharge of the offender;

(i) without recording a conviction, order the release of the offender on the adjournment of the hearing, and subject to the offender complying with certain conditions determined by the court;

(j)without recording a conviction, order the dismissal of the charge; or

(k)impose any other sentence or make any other order that is authorised under this Decree or any other Act.

11. I further draw my attention to Section 15(3) of Sentencing And Penalties Decree 2009 No: 42 of 2009

"As a general principle of sentencing, a court may not impose a more serious sentence unless it is satisfied that a lesser or alternative sentence will not meet the objectives of sentencing stated in section 4, and sentences of imprisonment should be regarded as the sanction of last resort taking into account all matters stated in this Part."

12. In Prasad v The State [1994] FJHC 132; Haa0032j.94s (30 September19994) S W Kepa J enunciated that

" A prison sentence ought to be the last resort after the court has explored and exhausted all other alternative sentences."

13. It has been noted inPrasad v The State [1994] FJHC 132 (Supra) thatcriminologists recognise that a prison sentence should be the last resort especially where a first offender is conderneess the charge irge is very serious or the offender is dangerous and imprisonment is called for in the public interest or in the interest of the offender hf.

14.This court convicts the accused for 1sor 1st andt and 2nd counts.

15.After consider the nature of the act that you have done you deserve the maximum punishment. Therefore as a starting point of sentencing for 1stand 2nd offences of annoying and common assault this court picks 10 months and reduced 2 months out of both sentence. Now it is 8 months for both offences.Due to other mitigation I suspend this sentence for 2 years subject to the condition of you to pay $ 200 compensation to victim within 1 month from today. If you failed to pay this compensation this suspended sentence will activate and will run concurrently. You are warned not to reoffend.

16. 28 days to appeal.

On 17thJuly 2015, at Suva, Fiji Islands

Neil Rupasinghe
Resident Magistrate