State v Lanyon [2018] FJMC 28; Criminal Case 226.2018 (29 March 2018)

IN THE MAGISTRATES’ COURT OF FIJI
AT NAUSORI

Criminal Case No: - 226/2018

STATE

V

DESMOND LANYON

For the Prosecution: WPC Siteri

The accused: In person

Date of Hearing: 28^th of March 2018

Date of Sentence : 29^th of March 2018

SENTENCE

1. DESMOND LANYON, you were charged with one count of Serious Assault contrary to section 277(b) of the Crimes Act No 44 of 2009(“Crimes Act”) and one count of Damaging Property contrary to section 369(1) of the Crimes Act.
2. You pleaded guilty for this charge yesterday and also admitted the following summary of facts presented by the prosecution.

On the 24th day of March 2018 at about 1700hours at Bull Shooter Billiard Shop one Desmond Lanyan[B-1] resisted arrested and damaged the shirt(Police uniform) of PC 5597 lakobo(A-1), 38 years, Nakaile Village and PC 5692 Aisake(A-1), 19 years, Police officer both of Nausori Police Station.

On the above mentioned date, time and place information received by (A-2) that (B-1) is drunk and causing trouble at the Bull Billiard Shop. (A-2) requested for (A-1)s assistance, whereby they left out towards the said billiard shop to check with the report received.

Upon arrival (A-1) and (A-2) from the view, they saw (B-1) lying motionless on the floor. (A-1) approached (B-1) and tried to wake him up, (B-1) was under the influence of liquor where the two officers managed to take (B-1) out of Billiard Shop. As they reached the front of Westpac Bank (B-1) resisted arrest by retaliating and threw a punch on (A-1) chest following by swearing saying “ Mother vagina” (A-2) assisted (A-1) and also was assaulted by (B-1) on the chest, due to scuffle (B-1) tore the Police shirt of the said officers.

Accused brought in under and interviewed under cautioned where he denied to the allegation(Ref. to Q28). Accused was then formally charged with the above offence and appearing in Court today.

3. I am satisfied that your plea was unequivocal and voluntarily. Accordingly I convict you for these offences.
4. The maximum penalty for Assaulting Police Officer under the Crimes Act is 05 years imprisonment.
5. In State v Batiratu [2012] FJHC 864; HAR001.2012 his Lordship Chief Justice Anthony Gates held :

“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.”

6. In the above case his Lordship said the tariff would be from 6-9 months imprisonment for this offence.
7. For Damaging Property the prescribed Penalty id 02 years imprisonment and Singh v State [2014] FJHC 191; HAA024.2013S (21 March 2014) the court held that the tariff is from 6 to 18 months.
   8. Section 17 of the Sentencing and Penalties Act, provides:

“If an offender is convicted of more than one offence founded on the same facts, or which form a series of offences of the same or a similar character, the court may impose an aggregate sentence of imprisonment in respect of those offences that does not exceed the total effective period of imprisonment that could be imposed if the court had imposed a separate term of imprisonment for each of them.”

9. The 2 offences you have convicted are found on same facts and hence I am going to impose an aggregate sentence of imprisonment for these two counts pursuant to section 17 of the Sentencing and Penalties Act.
10. In Laisiasa Koroivuki v the State [2013] FJCA 15; AAU0018.2010 (5 March 2013) his Lordship Justice Goundar discussed the guiding principles for determining the starting point in following manner:

"In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this time. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff.

11. Considering the objective seriousness of your offending, I select 07 months as the starting point for your sentence.
12. The aggravating factor was you were drunk at that time and for that I add 03 months to reach 10 months imprisonment.
13. In mitigation I consider the following :
    1. You are 23 years old;
    2. First offender;
    100. Student of FNU;
    4. Seeking forgiveness.
14. For these mitigating factors I deduct 03 months to reach 07 months imprisonment.
15. You pleaded guilty at the earliest opportunity and for that I deduct 1/3 to reach 04 months.
16. Even though this is below the accepted tariff I have come to this final sentence based on the early guilty plea of the accused as well as his mitigating factors.
17. Now I have to consider whether to suspend this sentence pursuant to section 26(2) (b) of the Sentencing and Penalties Act.
18. Normally Assaulting police officers would warrant a custodial sentence to denounce the behavior of the accused and to deter future offenders. As his Lordship Chief Justice noted in State v Batiratu (supra) “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.”
19. Hence even though you are a young and a first offender I find custodial sentence is warranted in this case.
20. Accordingly you are sentenced to 04 months imprisonment for this charge.
21. 28 days to appeal.
    

Shageeth Somaratne

Resident Magistrate