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Lalagavesi v State [2010] FJHC 386; HAA017.2010 (8 September 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA 017 OF 2010

BETWEEN:

SAULA LALAGAVESI
Appellant

AND:

STATE
Respondent

Appellant in Person
Ms M. Fong for the State

Date of Hearing: 31 August 2010
Date of Judgment: 08 September 2010

JUDGMENT

[1] On the 5th May 2010 in the Magistrates Court at Lautoka, this appellant was convicted of one count of assaulting a Police Officer in due execution of his duties and one count of escaping from lawful custody. He was sentenced on the same day to fifteen months for the assault charge and five months for the escape, both terms to be served concurrently.

[2] The appellant appealed against both conviction and sentence, but at the hearing of the appeal abandoned his appeal against conviction, maintaining his appeal against sentence. The appeal against conviction being abandoned is therefore dismissed.

[3] The appellant submits that the sentence is not only harsh and excessive but also that the Magistrate gave him no credit for time spent in custody prior to sentence.

[4] The charges arose out of an incident at the Lautoka High Court on the 25th day of January 2010 when the appellant charged with robbery with violence appeared in response to a bench warrant. Not surprisingly he was remanded in custody and was in custody of a Court Orderly, Police Constable 2598, pending transfer to the Natabua Remand Centre. At the appellant's request, Police Constable 2598 escorted him to the washroom where the appellant punched the Police Constable in the chest and ran away. The Police Constable was unable to catch him.

[5] The Learned Magistrate took a starting point of 12 months for the assault and 3 months for the escape. For unspecified aggravating features the Magistrate enhanced the assault sentence by six months and the escape sentence by three months. It should be noted that the appellant had 36 admitted previous convictions, including two for resisting arrest, one for obstructing a Police Officer in his duty and one for escape from lawful custody. It would appear that the Magistrate was not using these previous convictions as the aggravating features, but it was nevertheless a formidable list of previous convictions. For mitigating features, including being the sole breadwinner for his family the sentence was reduced by three months for the assault and by one month for the escape. The resultant final sentences were therefore fifteen months (assault) and five months (escape), to be served concurrently with a minimum term of 14 months.

[6] In the case of Tuibua v State – AAU0116.2007 the Fiji Court of Appeal said that a sentence of between 6 and 12 months imprisonment is an appropriate tariff for escaping from lawful custody; and in Wise v State – HAA 117/2005 Shameem J. said that an act of assaulting a Police Officer is serious because it strikes at the authority of law enforces.

[7] 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".

[8] 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.

[9] To claim as this appellant does that the Magistrate has given him no discount for time spent in custody prior to sentence is frivolous and absurd. The appellant was in custody in any event awaiting trial for robbery with violence and having earlier absented himself from appearances in the High Court. The Magistrate quite properly did not consider that to be a factor to be considered in the sentence.

[10] The appeal against sentence is allowed to the extent that the sentence for assaulting a Police Officer is reduced to nine months to be served concurrently with the term of five months for escaping from lawful custody.

Paul K. Madigan
Judge

At Lautoka
08 September 2010