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State v Volivolitukivei [2013] FJMC 321; Criminal Case 528.2012 (23 July 2013)

THE RESIDENT MAGISTRATE'S COURT AT SUVA

Criminal Case No. 528 of 2012

STATE

–v-

SULIANO VOLIVOLITUKIVEI

For the State: Cpl. Luke
For the Accused: Present

SENTENCE

1. SULIANO VOLIVOLITUKIVEI you have pleaded Guilty to the following Charges:

INDECENTLY INSULTING ANY PERSON Contrary to Section 213 (1) (a) of the Crimes Decree Number 44 of 2009 and MALICIOUS DAMAGED contrary to section 369 (1) of Crimes Decree Number 44 of 2009 and the Particulars of Offences are as follows;

First Count

On the 14th day of February 2013, at Lami in the Central Division, with intent to insult the modesty of JOKATAMA RAVONO, uttered the word, "Your mothers cunt" and "fuck each other, intending that such words should be heard by JOKATAMA RAVONO.

Second Count

On the 14th day of February 2013 at Lami in the Central Division willfully and unlawfully damaged 10 louver blades valued at $10.50 the property of JOKATAMA RAVONO.

2. The summary of facts of the case that was submitted by the prosecution and admitted by you is as follows;

First Count

On 14th day of February 2013 at about 4am in the early morning at Kalekana Settlement, Lami, Jokatama Ravono [PW-1] 63 years unemployed was asleep inside his house with his wife Alesi Ravono [PW-2] 54 years domestic duties. Suliasi Volivolitukivei [Accused] 40 years, a security officer who was drunk at that point in time went to [PW-1]'s house and knocked at their door saying he wanted to relay a message. [PW-1] told the [Accused] to return when its day light where they could talk about the matter. Even though the [Accused] was informed, he insisted that he talk with [PW-1] and in the process of their conversation, the [Accused] swore at [PW-1] saying "Magai Tinamu" and "Drau Veicai" which meant "Your mothers cunt" and "You fuck each other". After verbally abusing [PW-1], the [Accused] went away. The matter was reported to the police where the [Accused] was located, arrested and escorted to the station. The [Accused] was interviewed under caution and admitted the offence .

Second Count

On the 14th day of February 2013 at about 4am, the [Accused] after verbally abusing [PW-1], left the place and returned to [PW-1]'s house. Upon his return, the [Accused] damaged the 10 louver blades of the window at the verandah of [PW-1]'s house. The matter was reported to the police where the [Accused] was located, arrested and escorted to the station. The [Accused] was interviewed under caution and admitted the offence.

3. I consider following mitigating factors which were brought before me in your oral mitigation. That you are;
Married; working as a security officer and earns $97.00 per week; was angry; pleaded guilty; remorseful; willing to pay for the damages; reconciled with the complainant; complainant also came to court today to confirm the same.

4. Law

Count 1

I reproduce penal section for clarity. It says;
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.

Maximum Penalty — Imprisonment for 5 years.

Tariff;

In State v Baleinabodua [2012] FJHC HAC145.2015.2010 (21 March 2012) Justice Salesi Temo stated as follows referring to tariff for Criminal Intimidation

"Crl Intimidation" is a serious offence...., if the threat was intended to cause grie grievousevous hurt. .... in my view, an acceptable tariff would be a sentence between 12 months and 4 years imprisonment. Serious cases should be given the sentence in the upper range, while less serious cases should be given sentences at the lower end of the scale.

Count 2

I reproduce Section 369 (1) of the Crimes Degree No.44 of 2009.It says;

A person commits a summary offence if he or she wilfully and unlawfully destroys or damages any property.

Maximum Penalty for damaging property is Imprisonment for 2 years, if no other punishment is provided under any other provision of this section.

5. Aggravating Factors

According to the information revealed by the Summary of Facts placed before Court that you damaged o2 police shirts of two police personnel who was on duty. You were drunk when the offence took place. This aggravates the situation.

6. Sentence

In the light of general principle of sentencing under Section 15 (3) of the Sentencing and Penalties Decree and objective of sentencing under section 4 (1) and 4 (2) of the Sentencing and Penalties Decree, I now consider appropriate sentence on you.

In Sentencing, I consider your early guilty plea, Mitigating Factors in this case your antecedents. I note that you are a first offender. I also note that you are remorseful of your action.

First Count

Considering all the circumstances of this case I sentence you pursuant to Section 15 (g) of the Sentencing and Penalties Decree as follows:

Your conviction in this matter will stand for the next 06 months. You are ordered to enter into a bond for the sum of $500 to be bound over to this Court for the period of 06 months (23-07-13 to 24-01-14) to keep the peace and be of good behaviour for 01 count of Indecently Insulting Any Person Contrary to Section 213 (1) (a) of the Crimes Decree Number 44 of 2009.

Should you honour this bond then at the end of the bond period of 06 months you will be discharged and you retain your clean record.

The bond will be explained to you as well as the consequences of any breach.

Second Count

I order you to pay a fine $ 50.00(0.5 penalty unit) to be paid into Court in default 05 days, In addition $100.00, to be paid to the complainants to compensate them for the damage that you have caused. You have 01 month to pay.

28 days to appeal

Review: 08/08/13

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Lakshika Fernando
Resident Magistrate

On this 23rd day of July 2013