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State v Lesuma [2013] FJMC 230; Criminal Case 51, 53.2013 (5 June 2013)

IN THE MAGISTRATE'S COURT AT NASINU

Criminal Case Nos. 51/2013, 53/2013

STATE

-v-

JOSEPA LUA LESUMA

For Prosecution: PC Filipe Raymond
For the accused: In person

SENTENCE

1] You, JOSEPA LUA LESUMA, are here, to be sentenced to the following cases and you pleaded guilty to the charge of your own free will. The charges read as follows;

2] Criminal Case No. 51/2013

CHARGE:
FIRST COUNT
Statement of Offence [a]

ASSAULT OCCASIONING ACTUAL BODILY HARM: Contrary to Section 275 of the Crimes Decree No. 44 of 2009.

Particulars of Offence [b]

JOSEPA LUA LESUMA on the 15th day of November 2012 at Kalabu, Nasinu in the Central Division unlawfully assaulted one Varanisese Salawaqa thereby occasioning her actual bodily harm.

SECOND COUNT

Statement of Offence [a]

ANNOYING ANY PERSON: Contrary to Section 213 of the Crimes Decree No. 44 of 2009.

Particulars of Offence [b]

JOSEPA LUA LESUMA on the 15th day of November 2012 at Kalabu, Nasinu in the Central Division with intent to insult the modesty of Varanisese Salawaqa uttered the words "Caititamanu", "Magaitinamu", "Saqamua", meaning "fuck your father", "mother's cunt", and "bitch" intending that such words shall be heard by Varanisese Salawaqa.

3] Criminal Case No. 53/2013
CHARGE:

FIRST COUNT

Statement of Offence [a]

ANNOYING ANY PERSON: Contrary to Section 213 (1) (a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence [b]

JOSEPA LUA LESUMA on the 14th day of November 2012 at Qaranivalu, Nasinu in the Central Division with intent to insult the modesty of Arieta Senikau, uttered the words "Magaitinamu" meaning "mothers cunt" intending that such words be heard by the said Arieta Senikau.

SECOND COUNT

Statement of Offence [a]

ASSAULT OCCASIONING ACTUAL BODILY HARM: Contrary to Section 275 of the Crimes Decree No. 44 of 2009.

Particulars of Offence [b]

JOSEPA LUA LESUMA on the 14th day of November 2012 at Qaranivalu, Nasinu in the Central Division assaulted one Arieta Senikau thereby occasioning her actual bodily harm.

4] Summary of facts for each case are as follows;

Criminal Case No. 51/2013

One Josepa Lua Lesuma B1(Accused), 35 years, domestic duties, Qaranivalu Road. One Varanisese Salawaqa PW1, 25 years, student FNU of Qaranivalu Road. Accused 1 is PW1's aunty. On the 15th day of November 2012 between 7.00 am to 8.00 am PW1 came in front of their house while heard accused 1 quarrelling from her compound than stated that she will slapped PW1's head. At the same time Accused 1 start to swear to PW1 saying "Saqamua" meaning "Prostitute, Magaitinamu" meaning "Mother's vagina" "Dau Kau Tagane Yarayara" meaning sex with many man and "Caititamamu meaning 'Fuck your father'. Accused 1 ran towards PW1 then pulled her head and than punched her. Accused 1 pulled her chin and bit it. B1 was arrested on the 16th day of November 2012, interviewed and he was admitted, charges

Criminal Case No. 53/2013

PW1, Shameem Malam, 31 years, taxi driver, Lot 27 Salala Street, Valelevu. B1, Losena Vokabi, 28 years, domestic duties, Delaitokatoka Settlement, Valelevu. On 28th October 2012 at about 0600 hours, PW1 was driving his taxi, when B1 came towards PW1 taxi and punched the right side mirror. B1 was drunk and was coming back from the night club. PW1 then informed B1 that she was wrong and B1 got frustrated and damaged PW1 right side mirror of PW1 taxi. PW1 than reported the matter to Valelevu Police Station, B1 was arrested than interviewed and charged.

5] Maximum penalty could be imposed for ASSAULT OCCASIONING ACTUAL BODILY HARM is five years imprisonment. Maximum penalty could be imposed for ANNOYING ANY PERSON: is one year imprisonment

6] It was held in State v Tugalala [[2008] FJHC 78; HAC025S.2008S (29 April 2008), the tariff for this offence appears to range from an absolute or conditional discharge to 12 months imprisonment. As cited in earlier case, in Elizabeth Joseph v. The State [2004] HAA 030/04S and State v. Tevita Alafi [2004] HAA073/0hat it is this the extent of the injury which determines sentence. The use of a pen knife for instance, justifies a higher ing p Where there has been a deliberate assault, causing hospitalization and with no r no reconceconciliation, a discharge is not appropriate. In domestic violence cases, sentences of 18 months imprisonment have been upheld (in Amasai Korovata v. The State [2006] HAA 115/06S. In State v Ketewai [2009] FJMC 26; Criminal Case 150.2009 (9 December 2009); said that the tariff for indecent exposure is between 9 months to 4 months. Tariff for annoying persons to be set but indecent exposure is somewhat similar to the offence and maximum penalty, I adopt this tariff to this case.

7] There are no aggravating factors.

8] Medical Examination form tendered and revealed few visible injuries.

9] In my view, you have committed this crime with anger. Anger does not produce anything apart from the violence and peril of your life and others' lives. In general it may cause your and other peoples' life miserable. But fortunately this case has not led up to that much.

10] You assaulted your aunty. There was no reconciliation.

11] In mitigation, you said you are 35 years married with four children. You do domestic duties. You are a first offender. You are asking forgiveness and leniency of this court. You are remorseful. You ask non custodial sentence.

12] As I mentioned in Paragraph 3 you could have sentenced to 5 years imprisonment and one year and that is the intention of Parliament to punish this kind of offenders.

13] You are a first offender. You saved court's time and resources. I now deal with the sentencing option in this regard.

14] Section 4(2) provides; "In sentencing offenders a court must have regard to:—

(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 so or indicated an intention to do so;

(g) the conduct of the offender during the trial as an indication of remorse or 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 any 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 option."

15] I now draw my attention to Section 15(3) of SENTENCING AND PENALTIES DECREE 2009 no: 42 of 2009, the main object of the Sentencing.

"As a general principle of sentencing, a court may not impose a more serious sentence unless it is satisfied that a lesser or alternative sentence will not meet the objectives of sentencing stated in section 4, and sentences of imprisonment should be regarded as the sanction of last resort taking into account all matters stated in this Part."

16] Section 45(1) gives power to record a non conviction. It Says;

"A court on being satisfied that a person is guilty of an offence may dismiss the charge and not record a conviction"

17] You are a first offender. I now turn to case law.

18] In Prasad v The State [1994] FJHC 132; Haa0032j.94s (30 September19994) S W Kepa J enunciated that the fact that Appellants are first offender0;ought to beto be a very strong mitigating factor in their favour. A prison sentence ought to be the last resort after the court has explored and exhausted allr alternative sentences. (Emphasize is mine)

19] In Prasad v State [1994] FJCA 19; Aau0023u.93s (24 May 1994), Fiji Court of Appeal held that ".... Courts ought to bend backwards to avoid immediate custodial sentence for first offenders."

20] It has been noted in Prasad v The State [1994] FJHC 132 (Supra) that criminologists recognise that a prison sentence should be the last resort especially where a first offender is concerned u the charge irge is very serious or the offender is dangerous and imprisonment is called for in the public interest or in tteresthe offender himself. (Emphasize is mine).

21] I therefore imposimpose none non custodial sentence for you. I act under section 44 of the Sentencing and Penalty Decree. I enter a non conviction, charge is dismissed. You are bound over for sum of $2500 for next 2 years for both cases .

22] In addition I make following restraining orders under the Domestic Violence Decree 2009.
i] You must not harass the victim mentally or physically (standard non molestation order).
ii] You must not use any weapon on the victim.
iii] This sentence will not affect your career or future prospects.

23] 28 days to appeal.

On this 05th June 2013, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate