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State v Bolawaqatabu [2015] FJMC 21; Criminal Case 717.2014 (25 February 2015)

IN THE MAGISTRATES COURT AT NASINU

Criminal Case No. 717/2014

STATE

-v-

SEMISI BOLAWAQATABU

WPC Mili for the Prosecution
The Accused appeared in person

SENTENCE

1. You, SEMISI BOLAWAQATABU, are here, to be sentenced on admission of guilt on your own accord for the following offence namely:

CRIMINAL INTIMIDATION: Contrary to Section 375 (1) (a) (i) and (iv) of the Crimes Decree No. 44 of 2009.

SEMISI BOLAWAQATABU On the 1st day of September 2013 at Nasinu in the Central Division without lawful excuse, threatened ELENOA VULI verbally by saying "I will kill both of you" with intent to cause alarm to the said ELENOA VULI .

4. You have already admitted the above Summary of facts, which, can be reproduced in detail as follows;On the 1st day of September 2013 at about 2013 at Lot 35, Nawanawa Road, Nadera Semisi Bolawaqatabu Accused, 28 years, Dental Clinic Coordinator of above address verbally abused Elenoa Vuli A1, 70 years, Domestic Duties of the same address which annoyed her. The accused is A1\s grandson. On the above mentioned date time and place A1 was at home with her husband namely Isireli Vuli A2, 72 years, unemployed of the same address when the accused came running into their house, drunk and started verbally abusing both A1 and A2. The accused even threatened A1 and A1 by saying "Au na vakamatei kemudrau" meaning "I will kill both of you". After threatening A1 and A2 the accused called A1\s daughter namely Kelera Ravoka A3, 48 years, Loans Officer of 35 Derrick Street Raiwai and told her to come to her parents saying "Aunty Lela, you better come now I will kill both your parents". The accused was arrested and interviewed under caution and admitted to the allegation against him. The accused was formally charged for Criminal Intimidation Contrary to Section 213(1)(a) of the Crimes Decree No. 44 of 2009. The accused has nil previous conviction.

5. Sections 375 of the Crimes Decree define the offence as;

"375. — (1) A person commits a summary offence if he or she, without lawful excuse —

(a) threatens another person or other persons (whether individually or collectively) with any injury to —

(i) their person or persons; or

(ii) their reputation or property; or

(iii) to the person, reputation or property of anyone in whom that person is or those persons are interested —

with intent –

(iv) to cause alarm to that person or those persons; or

(v) to cause that person or those persons to do any act which that person is or those persons are not legally bound to do; or

(vi) to omit to do any act which that person is or those persons are legally entitled to do—

as the means of avoiding the execution of such threat; or

(b) directly or in directly, knowingly causes a threat to be made to another person or other persons(whether individually or collectively) of any injury to

(i) their person or persons; or

(ii) their reputation or property; or

(iii) to the person, reputation or property of anyone in whom that person is or those persons are interested —

with intent –

(iv) to cause alarm to that person or those persons; or

(v) to cause that person or those persons to do any act which that person is or those persons are not legally bound to do; or

(vi) to omit to do any act which that person is or those persons are legally entitled to as the means of avoiding the execution of such threat.

Penalty — Imprisonment for 5 years."

6. The tariff for Criminal Intimidation was set in the case of State v Baleinabodua [2012] FJHC 981; where Hon Justice Temo held:
"In my view an acceptable tariff would be a sentence between 12 months and 4 years imprisonment. Serious cases should be given the sentence in the upper range, while less serious cases should be given sentences of the lower end of the scale".
In Samisoni Mua Rabaka v State [2007] HAA 149/06S, 16 February 2007, Shameem J held that the tariff for this offence 12 months correct in principle for appellant who, with intent to cause alarm, threatened to kill his father with a cane knife. The maximum sentence for Criminal Intimidation is 5 years imprisonment if the threat was to cause grievous harm, death, destruction to any property by fire or to impute chastity to a woman, the imprisonment is 10 years.
In State v Chand Criminal Case No. 545/12 the accused was also charged with criminal intimidation for threatening the complainant with a kitchen knife. He was sentenced to 13 months imprisonment but 12 months was suspended for two years.

7. In your mitigation you said that your 29 years of age married with one daughter. You employed as a dental clinic coordinator. You have Seek forgiveness and Ask non-conviction, non-custodial sentence.You are remorseful. You sought forgiveness and leniency of this court. You are a first offender.

8. In sentencing I draw my attention to sentencing principles which set out in Sentencing and Penalty Decree 2009. 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."

9. In section 15 of sentencing and penalty Decree 2009 sets out range of sentencing orders. I reproduced it for clarity;
15. — (1) If a court finds a person guilty of an offence, it may, subject to any specific provision relating to the offence, and subject to the provisions of this Decree —

(a) record a conviction and order that the offender serve a term of imprisonment;

(b) record a conviction and order that the offender serve a term of imprisonment partly in custody and partly in the community;

(c) record a conviction and make a drug treatment order in accordance with regulations made under section 30;

(d record a conviction and order that the offender serve a term of imprisonment that is wholly or partly suspended;

(e) with or without recording a conviction, make an order for community work to be undertaken in accordance with the Community Work Act 1994 or for a probation order under the Probation of Offenders Act [Cap. 22];

(f) with or without recording a conviction, order the offender to pay a fine;

(g) record a conviction and order the release of the offender on the adjournment of the hearing, and subject to the offender complying with certain conditions determined by the court;

(h) record a conviction and order the discharge of the offender;

(i) without recording a conviction, order the release of the offender on the adjournment of the hearing, and subject to the offender complying with certain conditions determined by the court;

(j) without recording a conviction, order the dismissal of the charge; or

(k) impose any other sentence or make any other order that is authorised under this Decree or any other Act.

10. I further draw my attention to Section 15(3) of SENTENCING AND PENALTIES DECREE 2009 no: 42 of 2009

"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."

11. In State v Batiratu [2012] FJHC 864; HAR001.2012 (13 February 2012) His Lordship Chief Justice Gates set out list before entering a non-conviction to an accused person. The effect of the cases and the purport of the more detailed provisions of the Sentencing and Penalties Decree with regard to discharges can be summarized if a discharge without conviction is urged upon the Court the sentence must consider the following questions, whether:

(a) The offender is morally blameless

(b) Whether only a technical breach in the law has occurred.

(c) Whether the offence is of a trivial or minor nature.

(d) Whether the public interest in the enforcement and effectiveness of the legislation is such that escape from penalty is not consistent with that interest.

(e) Whether circumstances exist in which it is inappropriate to record a conviction, or merely to impose punishment.

(f) Are there any other extenuating circumstances a rare situation, justifying a Court showing mercy to an offender".

And further in the case Suren Singh v The State [2000] FJHC 264 2 FLR 127 where the learned Justice Shameem stated that:

"However as a general rule, leniency is shown to first offenders and offenders who plead guilty and express remorse. If these factors are present then the offender is usually given a non-custodial sentence".

In Prasad v The State [1994] FJHC 132; Haa0032j.94s (30 September19994) S W Kepa J stated;

"In my view the fact that appellants are first offenders ought to be a very strong mitigating factor in their favor. A prison sentence ought to be the last resort after the Court has explored and exhausted all other alternative sentences".

12. Further in the case of Nariva v The State [2006] FJHC 6; HAA0148J.2005S (9 February 2006) learned Judge Nazhat Shameem stated:

"The Courts must always make every effort to keep young first offenders out of prison. Prisons do not always rehabilitate the young offender Non-custodial measures should be carefully explored first to assess whether the offender would acquire accountability and a sense of responsibility from such measures in preference to imprisonment".

The discharging power of an accused is always subject to public interest and must use only in a situation where the discharging is essential for and as a part of rehabilitation. The main aspect of all the statutory provisions on non-conviction is based on the fact of "giving second chance" to the culprit unless it affects the wellbeing of the society. This bench is mindful of the same fact.

In Commissioner of Inland Revenue v Atunaisa Bani Druavesi [1997] 43 FLR 150 HAA 0012/97, Scott J held that he discharge powers under Section 44 of the Penal Code should be exercised sparingly where direct or indirect consequences of convictions are out of all proportion to the gravity of the offence and after the Court has balanced all the public interest considerations'.

13. Section. 16. (1) of said Decree gives powers to that. It says "In exercising its discretion whether or not to record a conviction, a court shall have regard to all the circumstances of the case, including: —

(a) the nature of the offence;

(b) the character and past history of the offender; and

(c) the impact of a conviction on the offender's economic or social well-being, and on his or her employment prospects."

14. Section 45 of the Sentencing and Penalties Decree also state that:

(1) A Court on being satisfied that a person is guilty of an offence may dismiss the charge and not record a conviction.

(2) A Court, on being satisfied that a person is guilty of an offence, may (without recording a conviction) adjourn the proceedings for a period of up to 5 years and release the offender upon the offender giving an undertaking to comply with the conditions applying under sub-section (2), and any further conditions imposed by the Court.

(3) An undertaking under Sub-Section (2) shall have conditions that-

(a) That the offender shall appeal before the Court if called onto do so during the period of the adjournment and if the Court so specifies at the time to which the further hearing is adjourned;

(b) That the offender is of good behaviour during the period of the adjournment

(c) That the offender observes any special conditions imposed by the Court.

15. I therefore for the above mentioned reasons act under section 15(1) f; 16 and 45(1) of the Sentencing and Penalty Decree I enter a non-conviction, charge is dismissed. You pay $100 State Cost. This order will not affect your career or future prospects. But this would be your final chance, don't come again and beg mercy from this court. You are warned not to reoffend.

16. 28 days to appeal.

On 25th Feb 2015, at Nasinu, Fiji Islands

Neil Rupasinghe
Resident Magistrate