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State v Cati [2017] FJMC 3; Criminal Case 85.2017 (26 January 2017)

IN THE MAGISTRATES’ COURT OF FIJI
AT SUVA

Criminal Case No: - 85/2017

STATE

V

NIUMAIA CATI

For the Prosecution: Cpl Shaw

The Accused: In person

Date of Sentence : 26^th of January 2017

SENTENCE

1. NIUMAIA CATI, you were charged with one count of Serious Assault 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 Escape from lawful custody contrary to section 196 of the Crimes Decree.
2. You pleaded guilty and admitted the summary of facts presented by the prosecution. According to that on 22/01/2017 after been arrested and escorted to the police vehicle you pushed PC 5109 Benedito Bolabiu to a drain and also damaged his uniform. After that you ran away from that place and later surrendered to Lami Police Station.
3. I am satisfied that your plea was made voluntarily and unequivocal and convict you for all the counts.
4. The maximum penalty for Serious Assault under the Crimes Decree is 05 years imprisonment.
5. 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.”

6. In the above case his Lordship said the tariff would be from 6-9 months imprisonment for this offence.
7. For Damaging Property the penalty is 02 years imprisonment and the tariff is 06-08 months imprisonment (Singh v State [2014] FJHC 191; HAA024.2013S (21 March 2014).
8. For Escape from lawful custody the prescribed penalty is 02 years imprisonment and tariff is between 6 – 12 months ( Isirel Rokovucago v Regina HAA 22/80).
9. 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 sentencing and observed :

"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.

10. Considering the objective seriousness, I select 06 months as the starting point for all the counts.
11. There are no aggravating factors and personal mitigating factors are 31 years old, married with a small child and willing to pay damages. For these I deduct 02 months to reach 04 months imprisonment.
12. You are not a first offender and not entitle for discounts for your character.
13. For pleading guilty at the earliest opportunity I deduct 1/3 to reach 02 months imprisonment for each count and considering these were committed in same transaction I order these to be concurrent.
14. The final sentence is below the tariff for all the counts but I have come to this due to lack of aggravating factors and early guilty plea of the accused as well as strong mitigating factors present in this case.
15. Now I have to consider whether to suspend your sentence.
16. You are not a young offender or a first offender. Further the police officers are doing an essential service in this country under difficult conditions and they need to be protected. It is not part of their duty to be assaulted by the public like this manner. People who commit this kind of offence need to be punished in a proper manner to denounce their behavior as well as to deter these from happening in future. Hence there is no valid ground to suspend this sentence.
17. NIUMAIA CATI, you are sentenced to 02 months imprisonment for this charge.
18. 28 days to appeal
    

Shageeth Somaratne

Resident Magistrate, Suva