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State v Peters [2015] FJHC 222; HAA013.2013S (27 March 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO. HAA 013 OF 2013S

BETWEEN:

STATE
APPELLANT

AND

1. SAMUEL PETERS
2. RONEEL KUMAR
3. KELVIN KUMAR
RESPONDENTS

Counsels : Ms. M. Fong for Appellant
Mr. J. Savou for Respondents
Hearing : 27 March, 2014
Judgment : 27 March, 2015

JUDGMENT

1. On 13 December 2012, you all appeared in the Suva Magistrate Court, on the following charge:
   

FIRST COUNT

Statement of Offence

ASSAULTING POLICE OFFICER IN DUE EXECUTION OF HIS DUTY: Contrary to section 277(b) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

SAMUEL PETERS on the 29th day of December 2012, at Suva in the Central Division, assaulted Police Constable No. 3734 Ashneel Maharaj, whilst in due execution of his duty.

SECOND COUNT

Statement of Offence

RESISTING ARREST: Contrary to section 277(b) of Crime Decree No. 44 of 2009.

Particulars of Offence

SAMUEL PETERS on the 29th day of December 2012, at Suva in the Central Division, after being lawfully arrested by POLICE Constable No. 3734, Ashneel Maharaj, in due execution of his duty, resisted the said arrest.

THIRD COUNT

Statement of Offence

OBSTRUCTING POLICE OFFICER IN DUE EXECUTION OF HIS DUTY: Contrary to section 277(b) of Crime Decree No. 44 of 2009.

Particulars of Offence

KELVIN KUMAR and RONEEL KUMAR on the 29th day of December 2012, at Suva in the Central Division, willfully obstructed Police Constable No. 3734 Ashneel Maharaj whilst in due execution of his duty.

2. You all waived your right to counsels. The charge was read and explained to each of you. You said, you understood the charge. Mr. Samuel Peters pleaded guilty to count no. 1 and 2. Mr. Roneel Kumar and Mr. Kelvin Kumar, you both pleaded guilty to count no. 3.
   
3. The brief facts of the case were as follows. On 29 December 2012, at about 7am, all of you were at High Street, Toorak, sitting on a footpath near a car, drinking beer. The complainant is a Police Constable 3734 Ashneel Maharaj. He was 26 years old, and attached to the Police Intelligence Assessment Unit. He was on duty with another police officer. They approached you, identified themselves as police officers, and warned you to leave the area. Mr Peters, you stood up, and swore at the officers, in the following manner, "Fuck you Police Officers! Go have your ass fucked!" PC 3734 warned you again Mr. Peters. You suddenly punched his mouth, causing injuries. The officers then arrested you, but you resisted by pulling PC 3734's shirt. While PC 3734 was arresting Mr. Peters, both of you Roneel and Kelvin obstructed PC 3734 by jointly holding him from the back.
   
4. The above summary of facts was put to you by the prosecution. You all agreed with the same. The court then found each of you guilty as charged, and convicted you accordingly. On 23 January 2013, the court sentenced Mr. Peters to 6 months imprisonment, suspended for 3 years for count no. 1, and a similar sentence for count no. 2, each to be concurrent to each other. Mr Roneel Kumar and Mr Kelvin Kumar were also sentenced to 6 months imprisonment suspended for 3 years each, for count no. 3. The State was not happy with the above sentences. It appealed to the High Court, and asked for a more appropriate sentence. In their submission to the court, the State asked for an immediate custodial sentence.
   
5. Section 277(b) of the Crimes Decree 2009 reads as follows:
   

Serious assaults

"...277. A person commits a summary offence if he or she –...

(b) assaults, resists or willfully obstructs any police officer in the due execution of his or her duty, or any person acting in aid of such an officer...

Penalty – Imprisonment for 5 years..."

6. Assault on police officers while in the due execution of their duties had always been taken seriously by the courts in Fiji. Police officers are at the forefront in the maintenance of the rule of law in Fiji. They ensure that the rule of law is maintained in the streets, in the towns, in the villages, and in the community. They ensure that people behave themselves in the streets, so that peace and harmony are the order of the day, in the community. It is their duty to warn people not to break the law, and to arrest them, if they are of the view, the law had been broken. If citizens think the police are wrong in executing their duties, then they must wait and challenge the same in the courts. Those who assault police officers while in the due execution of their duties, are doing nothing but risking an immediate custodial sentence. This is because it is the function of the courts to protect police officers while in the due execution of their duties, because through them, law and order are maintained and upheld in the streets and other parts of the community: State v David Batiratu, Revisional Case No. HAR 001 of 2012S, High Court, Suva; Saula Lalagavesi v State, Criminal Appeal No. HAA 017 of 2010, High Court, Lautoka; Herbert Wise v The State, Criminal Appeal HAA 117 of 2005S, High Court, Suva; The State v I. Ligatabua, Revisional Case No. HAR 09 of 2010S, High Court, Suva.
   
7. In this case, I have carefully perused the court record, to find out whether or not the Learned Resident Magistrate had erred in his sentence. I have carefully read the Learned Resident Magistrate's sentencing remarks. In my view, I can find no error in the Learned Magistrate's sentencing remarks, but for the suspension of Mr. Samuel Peter's sentence. Mr Samuel Peters was the one who swore at the police officers, while they were in due execution of their duties. When warned again by PC 3734, he suddenly threw a punch at the officers's mouth, causing injuries. When arrested by PC 3734 and the other police officer, he resisted arrest by pulling PC 3734's shirt. Mr. Peters was certainly misbehaving in the streets at the time. The complainant, as a police officer, was within his right to tell him to stop drinking in a public place, and to leave. He refused. He swore at the officers. He was again warned by PC 3734. He then suddenly punched the officer in the mouth. Although, the officer's injury was slight, Mr. Peters had to learn that, he had "cross the line", and a custodial sentence had to be imposed, as a lesson to other would-be offenders that, assaulting a police officer in the due execution of his duties, will result in an immediate custodial sentence.
   
8. As for Roneel Kumar and Kelvin Kumar, they did not punch the police officers. They merely obstructed PC 3734 in arresting Mr. Peters. I am prepared to give them another chance. They are first offenders.
   
9. In the interest of justice, I quash the suspension of Mr. Samuel Peters's 6 month's prison sentence. But because he had been waiting for 1 year for the judgment, I reduce his 6 months prison sentence, by 2 months, to 4 months imprisonment. He is to serve his 4 months prison sentence immediately, and the same is to take effect from the date of his arrest. As for Mr. Roneel Kumar and Mr. Kelvin Kumar, I will not disturbed the Learned Magistrate's sentence. In my view, the Kumars' sentences serve the interest of justice.
   
10. In summary, the State's appeal against Mr. Samuel Peters partly succeeds, in that, his 6 months prison sentence is reduced to 4 months imprisonment, to take effect from the date of his arrest. The State's appeal against Mr. Roneel Kumar and Kelvin Kumar fails, and the Learned Resident Magistrate's sentence is confirmed.
    

Salesi Temo

JUDGE

Solicitor for Appellant : Office of the Director of Public Prosecution, Suva.

Solicitor for Respondent : Legal Aid Commission, Suva.