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State v Suvei [2017] FJMC 18; Criminal Case 846.2011 (9 February 2017)

IN THE MAGISTRATES’ COURT OF FIJI
AT SUVA

Criminal Case No: - 846/2011

STATE

V

SEREMAIA SUVEI

For the Prosecution: Cpl Fisher

For the Accused: Ms.Malimali

Date of Sentence : 09^th of February 2017

SENTENCE

1. SEREMAIA SUVEI , you were convicted after a hearing to one count of Assaulting Police officers in due execution of his duty contrary to section 277(b) of the Crimes Decree ,one count of Damaging Property contrary to section 369(1) of the Crimes Decree and one count of Resisting Arrest contrary to section 277(b) of the Crimes Decree.
2. On 22^nd May 2011, SC 2271 Kamise Nasoroqo was in market police post and received information about some disturbance in the public central bus stand. He went and saw you with another drunk and behaving in unruly manner in a bus. You punched the police officer outside the bus and damaged his uniform. You also resisted the arrest by running away from the place.
3. The maximum penalty for Assaulting Police Officer is 05 years imprisonment.
4. In State v Batiratu [2012] FJHC 864; HAR001.2012 his Lordship Chief Justice Anthony Gates held :

“Assault on a police officer is listed under section 277 – headed "Serious Assaults". Serious assaults under this section attract a maximum sentence of 5 years imprisonment. These offences under section 277 are to provide protection for those persons with specific duties to perform, such as to arrest a suspect, or for a police officer to carry out his or her duty, or for anyone aiding a police officer in that regard, and they cover assaults committed during unlawful combinations to raise wages or respecting trade, business or manufacturing matters, or assaults against court process servers, those executing lawful distress, or assaults on persons carrying out duties imposed on them by law.”

5. In the above case his Lordship said the tariff would be from 6-9 months imprisonment for this offence.
6. For Damaging Property the prescribed Penalty id 02 years imprisonment and Singh v State [2014] FJHC 191; HAA024.2013S (21 March 2014) the court held that the tariff is from 6 to 18 months.
   7. For Resisting Arrest the penalty is again 05 years imprisonment and tariff is 6-12 months imprisonment.
8. In Laisiasa Koroivuki v the State [2013] FJCA 15; AAU0018.2010 (5 March 2013) his Lordship Justice Goundar discussed the guiding principles for determining the starting point in following manner:

"In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this time. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff.

9. Considering the objective seriousness, I select 07 months as the starting point for Assaulting Police Officer and Resisting Arrest.
10. The aggravating factors are the accused was drunk at that time and these were committed in a public place (Central Bus Stand) and for these I add 04 months to reach 11 months imprisonment for both counts.
11. In her comprehensive mitigation submission the learned defence counsel submitted that you are a young offender as well as a first offender. You are remorseful and willing to compensate to the complainant. For these mitigating factors I deduct 03 months to reach 08 months imprisonment for both counts.
12. Considering all the circumstances, I sentenced you to 08 months imprisonment for Damaging Property also and order these to be concurrent.
13. Now I have to consider whether to suspend this sentence pursuant to section 26(2) (b) of the Sentencing and Penalties Decree.
14. Normally Assaulting police officers would warrant a custodial sentence to denounce the behavior of the accused and to deter future offenders. As his Lordship Chief Justice noted in State v Batiratu (supra) “It is not to be accepted that police officers will be assaulted during the course of their work. That is not part of their job.”
15. But in this case it has been shown that you are diagnosed with Cognitive Impairment. Dr. Lincon in his psychiatric evaluation dated on 18^th August 2016 said that you are suffering from this mental impairment and even though you are 28 years old, your behavior is like a small child.

16. In R. v. Resler, 2011 ABCA 167 the Court of Appeal of Alberta, in Canada held that “Deterrence and denunciation are important principles of sentencing. However, in the context of a mentally ill offender, these principles may be considered to have less weight. Little would be achieved by making an example of an offender whose acts are committed at the time of mental illness, and specific deterrence has little impact on the mentally ill”

17. In R. v. Tremblay, 2006 ABCA 252 again the same court observed “We also agree that where an offender is found to be criminally responsible, but suffering from a serious mental illness, a more lenient disposition reflective of the offender’s diminished responsibility is called for: R. v. Taylor (1975), 24 C.C.C. (2d) 551 (Ont. C.A.); R. v. Moreau (1992), 1992 CanLII 3313 (QC CA), 76 C.C.C. (3d) 181 (Que. C.A.); and R. v. H.M.T. [2004] A.J. No. 1228 (Q.B.).”
18. Hence I find it would be justifiable by a sentencing court to treat an accused person leniently who is suffering from mental illness .Little weight can be given to principle of special deterrence and denunciation for such an offenders.
19. Further considering the mental development of the accused, in my view he should not be exposed to the hardcore criminals in the correction center which may subject him to degrading treatments. It would be more suitable to suspend this sentence allowing him to rehabilitate with his family members.
20. Accordingly I suspend this sentence to 01 year. If you commit any offences during next 01 year you can be charge under section 28 of the Sentencing and Penalties Decree.
21. 28 days to appeal.
    

Shageeth Somaratne

Resident Magistrate