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State v Naivakalele [2014] FJMC 122; Criminal Case 1270.2013 (1 July 2014)

IN THE RESIDENT MAGISTRATE’S COURT
AT NASINU

CENTRAL DIVISION

CRIMINAL JURISDICTION

CRIMINAL CASE NO.: 1270 OF 2013

STATE

V

JOSEFA NAIVAKALELE

For Prosecution: WPC Mere
For Accused: ( Ms.) Talei Kean , Legal Aid Commission.

SENTENCE

“JOSEFA” you appear for sentence, in this court, after pleading guilty to the offence of “ANNOYING ANY PERSON” contrary to section 213(1)(a) of the “Crimes Decree” , No: 44 of 2009.

Particulars of Offence

“JOSEFA NAIVAKALELE on the 31st day of August, 2013 at Nasinu in the Central Division with intent to insult the modesty of IOSEFO LOBANALIKU uttered the words “Caititamamu, Caititinamu, Caitibumu” meaning “Fuck your father, fuck your mother, Fuck your grandmother”, intending that such words shall be heard by the said IOSEFO LOBANALIKU.”

I am satisfied that your plea is “unequivocal” and that you understand the consequences of your plea.

The summary of facts submitted to court by the prosecution is reproduced below:

“(B-1) Josefa Naivakalele, 36yrs, Welder of Lot 101 Kaikai Street, Nepani. (PW-1) Iosefo Lobanaliku, 54yrs, Police Officer of Lot 13 Matau Street, Nepani. On the 31st day of August, 2013 at about 0800hrs (PW-1) was at home when (B-1) approached him. (B-1) want to come and visit his children whom he had with (PW-1)’s daughter. An argument broke out in regards to a laptop, then (B-1) swore at (PW-1) in Fijian saying “Caititamamu, Caititinamu, Caitubumu” meaning “Fuck your father, Fuck your mother, Fuck your grandmother”. He also challenged (PW-1) for a first fight. (PW-1) was really annoyed with the words uttered by (B-1). (PW-1) reported the matter to Valelevu Police Station and initial action taken. (B-1) was interviewed under caution and admitted committing the offence. He charged for one count of Annoying Any Person: Contrary to section 213 (1) (a) of the Crimes Decree No. 44 of 2009.”

“JOSEFA” the above mentioned summary of facts was read over to you by the prosecution in open court. You admitted the summary of facts.

Aggravating Factors

(1) The victim is particularly vulnerable.
(2) The total lack of respect shown by you towards your father-in-law.
(3) The annoyance was undignified.

Mitigating Factors

(1) You pleaded guilty to the charge and thereby saved courts time and resources.
(2) You are remorseful for your actions and deeds.
(3) You tendered an apology to court.
(4) You co-operated with the police by admitting the offence.
(5) You are a first offender.
(6) You reconciled with the victim.

Personal Circumstances

• You are aged 36.
• You are married with three tender aged children.
• You are a welder by the occupation.
• You earn $150.00 per fortnight.
• You are the sole bread winner in the family.
  

The maximum sentence that could be imposed for the offence of “Annoying person” [Section 213 (1) (a) of Crimes Decree 2009] is one year imprisonment.

There is no tariff for this offence. In the case of “Iqbal Koya vs State” (1991) HAA 48/99B, a sentence of 5 months imprisonment has been substituted in the appeal for the offence of “Annoying person”. In the case of “Arun Kumar vs State” a period of 3 months imprisonment has been substituted in the appeal 1999 HAA 3/95B.

Section 4[1] of the Sentencing and Penalties Decree limits the purpose of sentencing an offender to the following grounds:

(a) to punish offenders to an extent and in a manner which is just in all the circumstances.

(b) to protect the community from offenders;

(c) to deter offenders or other persons from committing offences of the same or similar nature;

(d) to establish conditions so that rehabilitation of offenders may be prompted or facilitated.

(e) to signify that the court and the community denounce the commission of such offences; or

(f) any combination of these purposes.

Section 4[2] of the decree outlines what a sentencing Court must consider when sentencing an offender:

(a) the maximum penalty prescribed for the offence;

(b) current sentencing practice and the terms of any applicable guideline judgment;

(c) the nature and gravity of the particular offence;

(d) the offender’s culpability and degree of responsibility for the offence;

(e) the impact of the offence on any victim of the offence and the injury, loss or damage resulting from the offence;

(f) whether the offender pleaded guilty to the offence, and if so, the stage in the proceedings at which the offender did not so or indicated an intention to do so;

(g) the conduct of the offender during trial as an indication of remorse of the lack of remorse;

(h) any action taken by the offender to make restitution for the injury, loss or damage arising from the offence, including his or her willingness to comply with any order for restitution that a court may consider under this Decree;

(i) the offender’s previous character;

(j) the presence of any aggravating or mitigating factor concerning the offender or other circumstance relevant to the commission of the offence; and

(k) any matter stated in this Decree as being grounds for applying a particular sentencing options.

At this stage, I address my mind to the legal principles enunciated in the case of “Divendra Bija vs State” 43 FLR 144. In this case it was held “each case must be assessed and evaluated in its true merits and that the best guidance as always is for the courts to grasp the essence of established general principles of sentencing and apply them based on the fundamental premise that a sentence should not be harsh and excessive or wrong in principle”.

“JOSEFA” you pleaded guilty to the charge at the earliest opportunity and thereby saved court time and resources.

It has been well recognized practice in common law to take into account a plea of guilty in the sentence. Most common Law Jurisdictions have codified this practice in sentencing statutes. In Fiji, the practice is a part of the common law.

In Navuniani Koroi v. The State Criminal Appeal No. AAU0037 of 2002S, the Court said:

“It has been the practice of the courts to reduce a sentence where the accused person has pleaded guilty. In most cases that is recognition of his contrition as expressed by an early admission and the fact that it will save the witnesses and the court a great deal of time and expense. In offences of a sexual nature, the amount of reduction is generally more because the plea saves the victim from having to attend the trial and relieve her experience in the witness box”.

The weight to be given to a guilty plea depends on a number of factors. Some of these factors were identified by Hunt CJ at CL in R V. Winchester (1992) 58 A Crim R 345 at 350:

"A plea of guilty is always a matter which must be taken into account when imposing sentence. The degree of leniency to be afforded will depend upon many different factors. The plea may in some cases be an indication of contrition, or of some other quality or attribute, which is regarded as relevant for sentencing purposes independently of the mere fact that the prisoner has pleaded guilty. The extent to which leniency will be afforded upon this ground will depend to a large degree upon whether or not the plea resulted from the recognition of the inevitable: Shannon (1979) 21 SASR 442 at 452; Ellis (1986) 6 NSWLR 603 at 604. The plea of guilty may also be taken into account as a factor in its own right independently of such contrition, as mitigation for the co-operation in saving the time and cost involved in a trial. Obviously enough, the extent to which leniency will be afforded upon this ground will depend to a large degree upon just when the plea of guilty was entered or indicated (and thus the savings effected): Beavan (unreported, Court of Criminal Appeal, NSW, Hunt, Badgery-Parker and Abadee JJ, 22 August 1991), at p.12.

In the “Principles of sentencing” second edition, by D.A.Thomas, at P.46 wrote

“The Final step in the process of calculating the length of tariff sentence is to make allowance for mitigation, reducing the sentence from the level indication by the facts of the offence by an amount appropriate to reflect such mitigating factors as may be present. Mitigating factors exist in great variety, but some are more common and more effective than others. They include such matters as the youth and previous of the offender....”

Having regard to the factual and legal background of this case, I select 09 months imprisonment as my starting point. I add 04 months for the “aggravating factors”. I reduce 03 months for the following “mitigating factors”:

1. You are remorseful for your actions and deeds.
2. You tendered an apology to court.
3. You co-operated with the police by admitting the offence.
4. You reconciled with the victim.
   

Now your sentence stands at 10 months imprisonment. You are a first offender. Hence, you are entitled for a discount for your previous good behavior. Therefore, I reduce 02 months for your previous good behavior. I reduce another 03 months for the “early guilty plea”.

Now your sentence stands at 05 months imprisonment.

“JOSEFA” you pleaded for forgiveness and applied for leniency in sentencing as you have now learnt a lesson and you will not re-offend. You urged Court to consider your family commitments, personal circumstances and your desire to get into the mainstream of the society. You were forceful and potent in your Plea for a ‘Non Custodial Sentence’.

In this context, I direct myself to consider the appropriate sentence on your conviction pursuant to your plea of guilty. In doing so, I am guided by the “General Principles of Sentencing”.

Under Section 26 (2) (B) of Sentencing and Penalties Decree 2009, a Sentence below two (02) years could be suspended.

A discussion of the process which should be undertaken when a judicial officer is considering a suspended sentence is found in the decision of the New Zealand Court of Appeal in R v. Peterson [1994] 2 NZLR 533.

There may be differences of details between the Fijian and New Zealand statutes. However, the principles stated in Petersen are helpful. These principles are summarized in the head note thus:

“The principal purpose of [the relevant section] was to encourage rehabilitation and to provide the Courts with an effective means of achieving that end by holding a prison sentence over an offender’s head. It was available in cases of moderately serous offending but where it was thought there was a sufficient opportunity for reform, and the need to deter others was not paramount. The legislature has given it teeth by providing that the length of sentence of imprisonment was fixed at the time the suspended sentence was imposed, that it was to correspond in length to the term that would have been imposed in the absence of power to suspend, and that the Court before whom the offender appeared on further conviction was to order the suspended sentence to take effect, unless of the opinion it would be unjust to do so. So, there was a presumption that upon further offending punishable by imprisonment the term previously fixed would have to be served (seep. 537 line 4).

The Court’s first duty was to consider what would be the appropriate immediate custodial sentence, pass that and then consider whether there were grounds for suspending it.

The Court must not pass a longer custodial sentence that it would otherwise do because it was suspended. Equally, it would be wrong for the Court to decide on the shorter sentence than appropriate in order to take advantage of the suspended sentence regime (seep. 538 line 47, p. 539 line 5). R V. Mah-Wingh (1986) 5 Cr App R (S) 347 followed.

The final question to be determined was whether immediate imprisonment was required or whether a suspended sentence could be given. If, at the previous stages of the inquiry, the Court had applied the correct approach, all factors relevant to the sentence were likely to have been taken into account already; the sentencer must either give double weight to some factors, or search for new ones which would justify suspension although irrelevant to the other issues already considered.

Like most sentencing, what was required here was an application of commonsense judgment, in which the sentencer must stand off and decide whether the imposition of a suspended sentence would be consonant with the objectives of the new legislation (see p.539 line 8, p. 539 line 37).

Petersen’s case was a prosecution appeal against leniency of sentence. Petersen had pleaded guilty at early opportunity, to reasonably serious drug offences: he was sentenced in the High Court to 18 months’ imprisonment suspended for 2 years plus 9 months’ periodic detention. He had no previous drug convictions and was aged 42 with family commitments. The New Zealand Court of Appeal considered Peterson’s offending so serious that it quashed the suspended sentence and imposed one of 18 months’ imprisonment concurrent on the several charges. The Court discussed at p. 539 the factors needing to be weighed in choosing immediate imprisonment or suspended sentence in these words:

“Thomas at pp.245-247 lists certain categories of cases with which suspended sentences have become associated, although not limited to them. We do not propose to repeat those in detail since broadly all can be analyzed as relating either to the circumstances of the offender or alternatively the offending. In the former category may be the youth of the offender, although this does not mean the sentence is necessarily unsuitable for an older person. Another indicator may be a previous good record, or (notwithstanding the existence of a previous record, even one of some substance) a long period of free of criminal activity. The need for rehabilitation and the offender’s likely response to the sentence must be considered. It is clear that the sentence is intended to have a strong deterrent effect upon the offender; if the latter is regarded as incapable of responding to a deterrent the sentence should not be imposed. As to the circumstances of the particular case, notwithstanding the gravity of the offence, as such there may be a diminished culpability, arising through lack of premeditation, the presence of provocation, or coercion by a co-offender. Cooperation with the authorities can be another relevant consideration. All the factors mentioned are by way of example only and are not intended as an exhaustive or even comprehensive list. The factors may overlap and more than one may be required to justify the suspension of the sentence in any particular case. Finally, any countervailing circumstances have to be considered. For example, in a particular case the sentence may be regarded as failing to protect the public adequately.

In concluding our consideration of the principles, we wish to add this. Understandably, the form of the legislation requires the sentencer to pass through a series of statutory gates, before reaching the point of availability of a suspended sentence. Subject to that however, like most sentencing what is required in the end is an application of commonsense judgment, in which the sentencer must stand off and decide whether the imposition of a suspended sentence would be consonant with the objectives of the new legislation. In many instances an initial broad look of this kind will eliminate the possibility of a suspended sentence as an appropriate response”.

D.A. Thomas in “Current Developments in Sentencing” (1969) Crim. L.R. 237 said:

“The court has refused to order suspension of a sentence passed for what amounted to a series of offences rather than an isolated one; in cases where the offence exhibits a degree of careful premeditation, or where the offence amounts to a serious breach of trust. The court is also reluctant to order suspension where the length of the term of imprisonment already makes substantial allowance for the factors which are urged as a basis for suspension.”

In O’Keefe (1969) 1 ALL ER 426, the English Court of Appeal noted that

"The court must go through the process of eliminating other possible courses such as absolute discharge, conditional discharge, probation order, fines and then say to itself: this is a case for imprisonment, and the final question, it being a case for imprisonment, is immediate imprisonment required, or can I give a suspended sentence?"

In Fiji, concern has repeatedly been expressed by the courts about the over-use of the suspended sentence. Byrne J in Nand Kumar –v- The State Crim. App. No. HAA0115.2002L said –

"In line with other judges I have frequently expressed the view that suspended sentences generally are a snare and a delusion in that they tend to give a person convicted a false sense of security and leave him under the mistaken belief that he has not done any wrong because he has not been sent to prison"

Grant C.J. said in DPP –v- Jolame Pita 20 FLR 5:

"Once a court has reached the decision that a sentence of imprisonment is warranted there must be special circumstances to justify a suspension, such as an offender of comparatively good character who is not considered suitable for, or in need of, probation, and who commits a relatively isolated offence of a moderately serious nature, but not involving violence. Or there may be other cogent reasons such as the extreme youth or age of the offender, or the circumstances of the offence."

The Court ought to bend backwards to avoid immediate custodial sentence for first offenders. "The first offenders should not be sentenced to immediate imprisonment" (Moses Nariva –v- State, Criminal App, HAA 148/2005).

"JOSEFA" in the circumstances, I decided to suspend your sentence. I sentence you for five (05) months imprisonment and it is suspended for two (02) years.

[The purpose and the effect of the suspended term is explained to the accused person along with the consequences of its breach under section 26 (3) of the "Sentencing Decree"]

If an offence punishable with a term of imprisonment is committed within the operational period of the suspended sentence, the suspended term shall begin to run consecutively in addition to the sentence that the accused person may get for the subsequent offence. The accused person is also informed that the commission of an offence punishable with imprisonment during the operation of the suspended term is an offence itself against section 28 of the Sentencing Decree for which the accused person could be arraigned and punished by the Court.

In addition to the suspended term, I order that you should perform 150 hours of community work in the Nasinu Courts Complex.

You are to be instructed by and supervised in this pursuit by the Welfare Officer, of the Department of Social Welfare, Nasinu and you are to contact him/her for instruction within fourteen days of this sentence.

On completion of 150 hours community work, a report is to be forwarded to this Court by the Department of Social Welfare. [The Senior Court Officer is advised to communicate this order to the Welfare Officer forthwith].

28 days to appeal.

Dated,at Nasinu on the 1st day of July, 2014.

Jude Nanayakkara [Mr.]
RESIDENT MAGISTRATE

Magistrate Court – 02
NASINU