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State v Tabutabu [2015] FJMC 25; CR863.2013 (20 February 2015)

IN THE RESIDENT MAGISTRATE'S COURT AT NADI FIJI ISLANDS
CRIMINAL CASE NO 863 Of 2013

STATE

V

JONE TABUTABU

BEFORE : Resident Magistrate, Kashyapa Wickaramasekara
DATE : Thursday 26th February 2015
COUNSEL: WPC Ana for the Prosecution
Mr. Mohammed {lAC) for the Accused

SENTENCE

1. You, JONE TABUTABU, were charged for one count of Common Nuisance and one count of Indecently Annoying Any Person contrary to Section 376 (1) {b) and 213 {1) (a) respectively, of the Crimes Decree No 44 of 2009.

The respective charges and the particulars of the offences are as follows;

First Count
Statement of Offence

Common Nuisance: contrary to Section 376 {1} (b) of the Crimes Decree No.44 of 2009.

Particulars of Offence

JONE TABUTABU on the 1st day of June 2013 at Nadi in the Western Division an act not authorized by law and caused annoyance to the said MANAINI NUKU.

Second Count
Statement of Offence

Indecently Annoying Any Person: contrary to Section 213 (1) (a) of the Crimes Decree No.44 of 2009.

Particulars of Offence

JONE TABUTABU on the 1st day of June 2013 at Nadi in the Western Division with intent to insult the modesty of MARY lOCKINTON uttered the words "I want to have sex with you" intending that such be heard by the said MARY lOCKINTON.

2. You pleaded guilty for the said offences on the 18th August 2014 on your own will and accord, whilst being represented by your counsel. Further you admitted to the Summary of Facts which were read over and explained to you in Court on this day. I am therefore satisfied that you fully comprehended the legal effect of your plea and your plea was voluntary and free from influence.

As such it is now up to this court to make a finding of guilt and convict you on the respective offences.

Naturally this would be done on your own plea of guilt. However, it is the duty of the court to first be satisfied on the facts submitted by the prosecution that a particular offence is made out prior to finding an Accused person guilty for such offence. To put this in other words, it is up to the court to see that elements of a particular charge have been established by the prosecution, prior to finding an Accused person guilty of such offence, irrespective of the fact that the Accused pleads guilty to the offence.

3. Summary of facts, as admitted by you, revealed that the alleged incident had had beent
committed on the 015 day of June 2013, at Uci Road, Waqadra, Nadi.

4. Further, the summery of facts reveals the following.

That you are the brother in law of the 2nd Complainant's husband, and the 15 Complainant (who is aged 18 years) is the step daughter of the 2nd Complainant. At the time of the alleged incident all three of you have being living in the same house.

On the day of the incident you had been drinking beer with your friends whilst the two complainants were sleeping inside the sitting room to which you had access to.

In the midst of the drinking activity, the 1st Complainant was suddenly awakened by you and was asked to accompany you to your room to have a chat. This request was denied by the 1st Complainant whereby you had returned to the drinking activity with the friends.

After a while, you had again come up to the 1st Complainant, lifted her by the shoulders and had dragged her towards your room, demanding her to go inside your room.

However, the 1^st Complainant managed to escape from you and had run up to the 2^nd Complainant and informed the incident.

You had then come up to the 2nd Complainant and told her that you wanted to have sex with her, which in fact had annoyed her.

It is further revealed that you had admitted to these allegations in the police interview under caution.

5. As per above facts, this court has no doubts that by the words you had uttered to the 2nd Complainant, she had in fact being indecently annoyed, as it is clear that these words have been intended to insult the modesty of the 2nd Complainant. (Since you have admittedly accepted the guilt, the court has no doubts on your intentions)

However, it is to be examined carefully whether your actions against the 15 Complainant, in fact constitute the alleged offence of 'Common Nuisance', as on the face of the above mentioned facts, it appears quite dubious.

6. The offence of 'Common Nuisance' under the Crimes Decree 2009 is identical to the similar offence under section 187 of the old Penal Code.
I shall reproduce both the sections in its entirety in this sentencing judgment, for the sake of clarity.

Sec. 376 of the Crimes Decree 2009:

(1} A person commits a summary offence if he or she does an act not authorized by law or omits to discharge a legal duty and by that act or omission-

(a) causes any common injury; or

(b) causes any danger or annoyance; or

(c) obstructs or causes inconvenience to the public in the exercise of common rights. Penalty - Imprisonment for 1 year.

(2) for the purposes of sub-section(1} it is immaterial that the act or omission complained of is convenient to a larger number of the public than it inconveniences, but the fact that it facilitates the lawful exercise of their rights by a part of the public may show that it is not a nuisance to any of the public.

Sec. 187 of the Penal Code:

Any person who does an act not authorized by law or omits to discharge a legal duty and thereby causes any common injury, or danger or annoyance or obstructs or causes inconvenience to the public in the exercise of common rights, commits the misdemeanour termed a common nuisance, and is liable to imprisonment for one year.

It is immaterial that the act or omission complained of is convenient to a larger number of the public than it inconveniences, but the fact that it facilitates the lawful exercise of their rights by a part of the public may show that it is not a nuisance to any of the public.

7. As per the plain reading of the above sections it is clear that both Penal Code and

Crimes Decree has the exact identical offence of 'Common Nuisance'.

In the breakdown of the elements of this offence, it is clear that the act or the omission alleged should in fact be against 'the public in the exercise of common rights' as oppose to an act or omission against a singular person in the exercise of his or her private rights. The elements of this offence is well examined in the case of State v Sang [2008] FJHC

11; HAA127.07 (1 February 2008). In this case Hon. Madam Justice Shameem had analyzed the elements of the offence of 'Common Nuisance' as follows.

'The offence of nuisance under section 187 of the Penal Code was derived directly from the common law offence of public nuisance. At common law a person commits a nuisance who (a) does an act not warranted by law, or (b) omits to discharge a legal duty, if the effect of the act or omission is to endanger the life, health, property or comfort of the public, or to obstruct the public in the exercise or enjoyment of rights common to "all Her Majesty's subjects" (Stephen's Digest of the Criminal Law 8th Ed. 1900 p.184). This definition survived the European Convention on Human Rights with the added requirement of proof that the defendant "knew or ought to have known, because the means of knowledge were available to him, that as a result of his action or omission a public nuisance would occur. 11 (R v. Sharrock ante). In R v. Rimmington; R v. Goldstein {2006] 1 AC 459, the House of Lords held that the offence of public nuisance was defined in clear enough terms to satisfy the European Convention protection against laws which might lack certainty and fail to prescribe punishment in clear enough terms." (Emphasis added).

Furthermore, her Ladyship had stressed upon the element of 'public' in this offence with the use of several English case authorities;

'A nuisance can therefore be committed by an act or by an om1ss1on. A nuisance becomes a "public" or a "common" nuisance when, as the English Court of Appeal said in Att-Gen v. P.Y.A. Quarries Ltd. {1957] 2QB 169 it "materially affects the reasonable comfort and convenience of life of a class of Her Majesty's subjects." Whether or not the members of the community who give evidence constitute a sufficient number of persons is a question of fact in each case (per Romer U). Denning U had a simpler

I prefer to look to the reason of the thing and to say that a public nuisance is a nuisance which is so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings on his own responsibility to put a stop to it, but that it should be taken on the responsibility at large. II

The difference between a private nuisance (which gives rise to an action in tort) and a public nuisance (which leads to criminal prosecution) is usually the degree of the nuisance. A single act of nuisance is capable of being a public or common nuisance as long as there is a negative impact on the community or on a significant section of it (R v. Rimmington; R v. Goldstein ante) and of course the same act of nuisance can give rise to both civil and crimina/liability."

At the end, her Ladyship in her judgment summarized the elements of this offence thus;

111 see no real difference between the common law offence of public nuisance and the Penal Code offence of common nuisance. I find that the elements of the offence are:

1. the accused;

2. did an act not authorized by law or omitted to discharge a lawful duty;

3. thereby caused;

4. any common injury or danger or annoyance or obstructs or causes inconvenience to the public in the exercise of common rights.

It is a defence to the charge to show that the accused could not have known that his/her act would lead to the nuisance because the nuisance is not a probable consequence of the act. It is also a defence to the charge to show that the act complained of facilitates the lawful exercise of their rights by a part of the public. 11

The first question for the learned Magistrate was therefore to ask whether there was any act not warranted by law. The second was whether the act complained of caused annoyance or inconvenience to members of the public. The third was whether the numbers inconvenienced were sufficient to satisfy him that the nuisance was a "common" one that is whether sufficient numbers of people were inconvenienced. And the fourth was whether the accused claimed that he did not know and could not have known of the acts which constituted the nuisance. (Emphasis added)"

8. In line with the above authority and the comprehensive analysis thereof; this court finds that the prosecution in this case (as per the Summary of Facts) has failed to establish the essential elements of the offence of 'Common Nuisance', and as such this offence is not made out against you.

9. This court therefore finds you not guilty on the count of 'Common Nuisance' and accordingly acquits you from the same.

10. However, as the count of 'Indecently Annoying Any Person' has been made out by the facts, you are found guilty of this count and convicted accordingly.

Court shall now proceed to sentence you on the count of 'Indecently Annoying Any Person'.

11. Having considered the summery of facts in this case and the surrounding circumstances under which this incident had occurred, I now direct myself to consider the appropriate sentence on you under the guidelines on sentencing and the range of sentencing orders as set out in Sections 04 and 15 of the Sentencing and Penalties Decree 2009 in line with the objectives thereof, having due consideration over the prescribed penalty, the tariff for the offence and the facts in mitigation.

12. The offence of 'Indecently Annoying Any Person' carries a penalty of imprisonment for 01year.

I shall now consider the Tariff for this offence. As far as the appellate court authorities are concerned there is no specific Tariff set for this offence. However, considering the cases of Kumar v. State [1995] FJHC 2; HAA003j. 1995b (7th February 1995) and Prakash v State [2013] FJHC 656; HAA27.2013 (4 December 2013), it can be held that a sentence from a 'bound-over' order to 09 months imprisonment term at the higher end, depending on the seriousness of the circumstances of the offending, is appropriate for this offence.

In view of the surrounding circumstances of this offence and the domestic relationship you shared with the Complainant, this court concludes that a prison term is warranted for this offence and on the same note takes 04 months imprisonment term as the starting point.

13. I find the fact of breaching the trust, reposed on you by the Complainant as a close relative and an occupant in the same house to have aggravated this offence.

As such to reflect the aggravating factors I add 06 months to your sentence which enhances your sentence up to 10 months.

14. I shall now consider the facts in mitigation as submitted in the written submissions filed by the Legal Aid.

• That you have reconciled with the complainant, by way of presenting a 'yaqona' to her. However, this fact is not confirmed by the Complainant and as such shall not be considered in mitigation.

• Expressed remorse by way of an apology to court as well as to the Complainant and a promise not to re-offend.

• Cooperation with the police at the time of investigations.

• Though not submitted in the written submissions, you are a first offender and as such you deserve credit for your previous good character as well.

• That you pleaded guilty at an early stage saving time and resources of the court and the state.

To reflect the above mitigatory factors (except for the guilty plea) a 01month discount is made and the guilty plea is separately discounted by a further 03 months.

15. Accordingly your final sentence shall be 06 months imprisonment.

16. Court shall now consider the question of suspension of sentence pursuant section 26 of the Sentencing and Penalties Decree 2009. As your final sentence is less than 24 months this court has the jurisdiction to suspend it. However, as per the guideline cases on suspension of sentences; DPP v Jolame Pita (1974) 20 HR 5 and more recently DPP v Saviriano Radovu (1996) 42 HR 76 and Deo v State (2005) FJCA 62, a court has to consider whether there are any special circumstances to justify a suspension of the sentence.

17. The following facts and circumstances in my view would justify a suspension of your sentence;

• No form of violence exercised or implied on the Complainant.

• You are a young first offender who boasts a clear criminal record for the past 30 years of your life.

• You have a young family including three children whom you support.

• You are now residing elsewhere from the house of the Complainant.

I therefore proceed to suspend your sentence for a period of 03 years and you are hereby explained the scope and effect of a suspended sentence and further the consequences that would follow if you commit another offence during the period of suspension.

18. In the final outcome, your sentence for the offence of 'Indecently Annoying Any Person' is 06 months imprisonment term suspended for 03 years.

19. Further to your sentence, court at this instance is inclined to consider a 'Domestic Violence Restraining Order' as this is an offence which falls under the category of 'Domestic Violence Offences'.

The Complainant is your sister-in-law and this offence is thereby obviously committed on a female.
As such pursuant to sec.24 (1) (b) and 28 of the Domestic Violence Decree 2009, court now makes a final Domestic Violence Restraining Order against you for the protection of the Complainant, MARY LOCI<INTON, on Standard Non-Molestation condition. This domestic violence restraining order shall be in force until and unless varied or suspended by a competent court. Breach of this order shall result in you being charged and prosecuted for an offence pursuant to sec.77 of the Domestic Violence Decree.

20. You have 28 days to Appeal.

Kashyapa Wickramasekara

26/02/2015 Resident Magistrate.