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State v Sharma [2013] FJMC 134; Criminal Case 1520.2012 (2 April 2013)

IN THE MAGISTRATES COURT AT NASINU

Criminal Case No. 1520/2012

STATE

-v-

ARVINDRA SHARMA

Police Inspector Joji for the Prosecution
The accused appeared in person.

SENTENCE

1] You, ARVINDRA SHARMA, are here, to be sentenced on admission of guilt on your own accord for the following offence namely:

CHARGE:

Statement of Offence [a]

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

Particulars of Offence [b]

ARVINDRA SHARMA, on the 5th day of December, 2012 at Nakasi in the Central Division, obstructed WPC 3755 Trisa Singh in due execution of her duties.

2] You pleaded guilty to the charge at the very outset. I am satisfied that your plea is unequivocal and that you understand the repercussion of your plea. I convict you as charged.

3] The SUMMARY OF FACTS, which you have already admitted as follows;

1. The Accused, Arvindra Sharma, B1, 48 years, Taxi Proprietor of Lot 133, Nakasi Road, Nakasi.
   
2. The complainant WPC 3755 Trisa, PW2, 30 years, Police Officer of Nakasi Police Station.
   
3. On 5/12/12m at about 1310 hours, at Nakasi Police Station charge room, PW1 was interviewing B1’s girlfriend namely Nazreen Nisha, (Suspect) vide EI PEP 160/12.
   
4. Whist PW1 was interviewing the suspect, B1 came and started talking with the suspect.
   
5. PW1 warned B1 that he cannot talk with the suspect as she is still being interviewed.
   
6. B1 said to PW1 that he came to the suspect for her protection.
   
7. PW1 warned B1 that the suspect was given her rights and she refused to exercise any of her rights. Suspect does not want anybody to be present with her whilst being interviewed.
   
8. After a while B1 went inside Station Sergeant’s Office where his statement was recorded by PC Akuila.
   
9. At about 1335 hours, B1 came out of Station Sergeant’s Office and again started talking with the suspect.
   
10. PW1 warned B1 in presence of WSC 151 Nainasa, PC 4760 Viliame and PC Akuila that he cannot talk with the suspect as she was being interviewed.
    
11. B1 was very fussy at Nakasi Police Station.
    
12. B1 after being warned several times by PW1 not to interfere in the interview, did obstruct PW1 in the due execution of her duty.
    
13. PW1 then lodged a report against B1.
    

4] Maximum sentence is 5 years imprisonment. Section 277 of the Crimes Decree 2009 says;

“277. A person commits a summary offence if he or she—

(a) assaults any person with intent to commit an indictable offence, or to resist or prevent the lawful apprehension or detention of himself, herself or of any other person for any offence; or

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

(c) assaults any person in pursuance of any unlawful combination or conspiracy to raise the rate of wages, or respecting any trade, business or manufacture or respecting any person concerned or employed by it; or

(d) assaults, resists or obstructs any person—

(i) engaged in lawful execution of court process; or in

(ii) making a lawful distress, with intent to rescue any property lawfully taken under such distress; or

(e) assaults any person on account of any act done by him or her in the execution of any duty imposed by law.

Penalty - Imprisonment for 5 years”

5] Tariff for this offence has been reviewed by State v Batiratu [2012] FJHC 864; HAR001.2012 (13 February 2012) his Lordship Chief Justice Gates held;

"Not only is assault on a police officer not included in the list of offences where reconciliation may be considered, the offence is one too serious by its nature for the matter to be settled in such a way. Though the instant case may be one "not aggravated by degree", it is not one "substantially of a personal or private nature." As a matter of public policy for the maintenance of law and order, assault on police cases like those of domestic violence would be entirely unsuitable for termination by mere amicable settlement".

6] Further, His Lordship Chief Justice discussed the tariff for the offence in the case of Batiratu(supra). It was held;

"The sentence ordered of binding over, the discharge without conviction, was not within the range and type of sentencing suitable for the offence of assault on police. The range is between 6-9 months imprisonment. The perversity of the offence is its violent challenge to lawful action taken by State servants, not in the extent of the assault. Of course the greater the violence and the injuries caused will lead to enhancement of sentence".

7] In your oral mitigation you said that you are 48 years old, sole bread winner of the family. You have disabled brother. You said you had a problem with the victim-the police officer. You said she took revenge from you by lodging this complaint. You explained the circumstance of offending. When you inquired 'what happened' from the police officer said she replied 'this is not your house'.

8] There are no aggravating factors in this case. There is no physical violence on the victim. The obstruction was when the victim interviewed the accused's girl friend, the accused talked to her despite several warning.

9] You have one previous conviction in 2008. It was using abusive language.

10] As I mentioned above, the offence is serious. You interrupted peace and law enforcement officer's duty. I pick 6 months as starting points. For your early plea and mitigation, I deduct 2 months. Now your sentence is 4 months. As there is no physical violence, I suspend the same for 18 months.

11] Nature of suspended sentence is explained in open court.

12] 28 days to appeal.

On 02nd April 2013, at Nasinu, Fiji Islands

Sumudu Premachandra [Mr.]
Resident Magistrate-Nasinu