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State v Delai [2013] FJMC 14; Criminal Case 266.2012 (14 January 2013)

IN THE MAGISTRATE COURT OF FIJI
AT TAVUA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. 266/12

BETWEEN:

THE STATE

AND:

RAFAELE DELAI

Prosecution: Cpl Chin Sami
Accused: In Person

SENTENCE

1. Rafaele Delai you pleaded guilty to Criminal Intimidation contrary to section 375(1)(a)(iv) of the Crimes Decree no. 44 of 2009 and Annoying Person contrary to section 213(a) of the Crimes Decree no.44 of 2009.
   
2. You waived your right to counsel and opted to represent yourself. The charge was read and explained and you pleaded guilty voluntarily to the same. You also accepted the facts tendered by prosecution.
   
3. The Court accepts your guilty plea to be unequivocal and convicts you as charged.
   
4. On 18th October 2012 at 7.30am at Lololevu Vatukoula the complainant (Litia Adi, 42yrs) was cooking in the kitchen when you came and told her to hurry up with her cooking. She told you to wait. You got annoyed and swore at her. You also threatened her with a kitchen knife.

The matter was reported to police. You were arrested interviewed under caution and charged accordingly.

6. You mitigated and I take the following in your favor:
   
   • Guilty plea.
     
   • First offender.
     
   • Seek forgiveness and remorseful.
     
7. The aggravating features of the offences are prevalence of offence in community and lack of provocation.
   
8. For Criminal Intimidation the maximum sentence is 5 years and although there is no fixed tariff, I would take 6 months to 2 years as being the appropriate tariff depending on the circumstances of the offence.
   
9. The offence of Indecently Annoying any person carries a maximum imprisonment term of 1 year. The tariff in my view would range from between 1 month to 6 month's imprisonment depending on the circumstances of the case.
   
10. In considering the circumstances of offending in this case, I consider criminal intimidation as being the principle offence. For that I take a starting point of 9 months.
    
11. For the aggravating factors I increase your sentence by 2 months hence your sentence is now 11 months imprisonment.
    
12. For your mitigation and this being your first offence I reduce the sentence by 2 months and further reduction of 3 months for guilty plea. Your final sentence is now 6 months imprisonment.
    
13. Your sentence for annoying person is 3 months imprisonment. Both offences are to be served concurrently. Your total sentence is therefore 6 months imprisonment.
    
14. Taking into consideration that this is your first offence and the need for your rehabilitation, it would be appropriate that a suspended sentence be imposed in your case.
    
15. Nonetheless I'm going to warn you that should you be convicted before this court for any similar offence in future, this court will not be lenient with you.
    
16. You are sentenced to 6 months imprisonment suspended for 2 years. If you commit any other offence within the operational period of 2 years, you'll be charged for breaching this suspension order and if convicted, you'll be made to serve this 6 months imprisonment with any other term imposed in that other offence.
    
17. In addition to the above, I also order that your pay 2 penalty units ($200.00) as fine. Fine to be paid within a period of 30 days, in default 20 days in prison.
    
18. This matter will be reviewed in 30 days.
    
19. 28 days to appeal.
    

Samuela Qica
Resident Magistrate

14th January 2013.