State v Tuivawa [2024] FJMC 25; Criminal Case 124 of 2022 (17 May 2024)

IN THE MAGISTRATES’ COURT
AT BA
CRIMINAL JURISDICTION

Criminal Case No. 124/2022

BETWEEN: STATE

PROSECUTION

AND: PAULA TUIVAWA (SNR)

ACCUSED

Counsel: Sergeant 4971 Veni Vunaki for Police Prosecution
Mr. R Filipe (LAC) for the Accused.

Date of Trial: 16 April 2024
Date of Judgment: 15 May 2024
Date of Sentence: 17 May 2024

SENTENCE

Introduction

1. Mr. Paula Tuivawa (Snr), on 15 May 2024, the Court found you guilty and convicted you for 1 count of Criminal Intimidation contrary to section 375(1)(a)(i)(iv) of the Crimes Act 2009. The particulars of the offence are:
   

Statement of Offence

Criminal Intimidation: Contrary to Section 375(1)(a)(i) and (iv) of the Crimes Act 2009.

Particulars of Offence

Paula Tuivawa (Snr) between 19^th day of March, 2022 to the 20^th day of March, 2022 at Field 28, Ba in the Western Division without lawful excuse threatened Inoke Rasiga by throwing stone at him with intent to cause alarm to the said Inoke Rasiga.

2. The maximum penalty for the offence of Criminal Intimidation where there is a threat to cause alarm is 5 years imprisonment.
   
3. The brief facts were as follows:
   
   1. On 19 March 2022, the Complainant had been drinking with you, Ju and some of his friends.
   2. At 10pm, the Complainant then went to sleep with his wife and children in the house.
   100. After 12 midnight while they were sleeping there was a lot of noise so the Complainant looked outside and told the drinking party not to make noise as they were sleeping.
   4. After saying this, those in the drinking party started yelling at the Complainant and swearing at him.
   5. The Accused was part of the drinking party and got angry and took a stone and threw it. The window broke but there was no injury to the Complainant.
   6. The Complainant and his children were then taken to the neighbour’s house as the Complainant was scared that something might happen to his children.
   7. The Accused was arrested, interviewed under caution and admitted in his Caution Interview that he had thrown the stone at the window as he was angry. The Accused was subsequently charged for this matter.
      

Sentencing Regime

4. The tariff for Criminal Intimidation when there is a threat to cause death or intended grievous harm is between 12 months and 4 years imprisonment with serious cases being given sentences in the upper range while less serious cases should be given sentences at the lower end of the scale (vide State v Baleinabodua [2012] FJHC 981; HAC 145.2010 (21 March 2012)).
   
5. There is no set sentencing preference or tariff for Criminal Intimidation where there is a threat to cause alarm. Thus, the sentence in each case is dependent on its own set of facts.
   

Mitigating and Aggravating Factors

6. The mitigating factors offered by the Accused’s counsel are as follows:
   
   1. you are a 55-year old widowed market vendor earning $155 per week;
   2. you have 6 children who are all above the age of 18 years;
   3. you have reconciled with the Complainant and you both stay in the same residence; and
   4. you seek the leniency of the Court and request for a non-custodial sentence.
      
7. You also confirmed through your counsel that you currently have 2 active Previous Convictions which are as follows:
   
   1. Indecently Annoying Any Person – Sentenced on 19 September 2014 to a fine of $50 with $25 to be paid to the Complainant as compensation. 60 days to pay in default 7 days imprisonment; and
   2. Unlawful Possession of Illicit Drugs – Sentenced on 12 April 2017 to a fine of $100 to be paid within 14 days in default 2 months imprisonment.
      
8. The aggravating factors are as follows:
   
   1. there was minimal provocation on the part of the Complainant when you committed this offence;
   2. the Complainant’s children were present during this incident and affected as they had to be taken to the neighbour’s house; and
   3. you had been drinking at the time of the offending.
      

Sentence

9. In sentencing you, the Court has taken into account the factors outlined in section 4(1)-(3) of the Sentencing and Penalties Act 2009.
   
10. Considering the objective seriousness of this offending, I pick a starting point of 16 months imprisonment. I will then add 4 months for the aggravating factors, making it a total of 20 months imprisonment.
    
11. In accordance with Raj v State Appeal No. CAV 0003 of 2014 (20 August 2014) your personal circumstances and family background is of little mitigatory value, thus for your mitigating factors, I deduct 1 month, leaving you with a balance of 19 months imprisonment.
    
12. Section 26(1) of the Sentencing and Penalties Act allows a court to make an order suspending the whole or part of the sentence if it is satisfied that it is appropriate to do so in the circumstances whilst section 26(2)(b) provides the Magistrates Court with the discretion to suspend a sentence where the sentence does not exceed 2 years.
    
13. Thus, considering the circumstances in which this offending took place, I am of the view that this is a case that can be suspended as the final sentence does not exceed 2 years. I will suspend the 19 months imprisonment term for a period of 3 years.
    
14. If you commit any crime during the 3 years, you are liable to be charged and prosecuted for an offending pursuant to section 28 of the Sentencing and Penalties Act.
    
15. Further, as this incident involves domestic violence, there are sufficient grounds to make an order under the Domestic Violence Act. Accordingly, I grant a permanent domestic violence restraining order (DVRO) against you with standard non-molestation conditions. This DVRO will remain in force until this court or any other competent court varies or suspends it. If you breach the DVRO, you will be liable to be charged and prosecuted for an offence pursuant to section77 of the Domestic Violence Act.
    
16. You have 28 days to appeal.
    

N. Mishra
Resident Magistrate