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State v Tabati [2019] FJMC 119; Criminal Case 55 of 2018 (13 August 2019)

IN THE MAGISTRATES’ COURT OF FIJI
AT NAUSORI

Levuka Criminal Case No: 55/2018

STATE

V

SIKELI TABATI

For the Prosecution: Sgt.Shalend

The Accused: In person

Date of Sentence : 13^th of August 2019

SENTENCE

1. SIKELI TABATI , you were convicted after a hearing to 3 counts of Serious Assault contrary to section 277(b) of the Crimes Act No 44 of 2009(“Crimes Act”).
   
2. During the hearing the prosecution proved that you with some others were drinking at Levuka town 25^th March 2018 and when DC Manoj Kumar asked you to leave the place , you punched his forehead. You also resisted the arrest of SC Simione and also bit his finger. Both police officers received injuries as per the medical reports produced in the court.
   
3. The maximum penalty for Assaulting Police Officer under the Crimes Act is 05 years imprisonment.
   
4. In State v Batiratu [2012] FJHC 864; HAR001.2012 his Lordship Chief Justice Anthony Gates ( as he then was ) held :
   

“Assault on a police officer is listed under section 277 – headed "Serious Assaults". Serious assaults under this section attract a maximum sentence of 5 years imprisonment. These offences under section 277 are to provide protection for those persons with specific duties to perform, such as to arrest a suspect, or for a police officer to carry out his or her duty, or for anyone aiding a police officer in that regard, and they cover assaults committed during unlawful combinations to raise wages or respecting trade, business or manufacturing matters, or assaults against court process servers, those executing lawful distress, or assaults on persons carrying out duties imposed on them by law.”

5. In the above case his Lordship said the tariff would be from 6-9 months imprisonment for this offence.
   
6. But section 277 of the Crimes Act has been amended by Crimes (amendment) Act NO. 5 OF 2018 in the following manner:
   

Section 277 of the Crimes Act 2009 is amended by deleting "Penalty — Imprisonment for 5 years." and substituting the following—

"Penalty—

(a) for paragraphs (a), (c), (d) and (e) — imprisonment for 5 years; and

(b) for paragraph (b) — imprisonment for 5 years, or imprisonment for 10 years if the person assaults a police officer in any of the following circumstances—

(i) he or she bites, spits on or throws at the police officer, or otherwise applies to the police officer a bodily fluid or human or animal faeces;

(ii) he or she is, or pretends to be, armed with a dangerous or offensive weapon or instrument; or

(iii) he or she causes bodily harm to the police officer.".

7. This amendment was passed in the parliament on 15^th of March 2018 came in to operation on 21^st of March 2018 in Fiji.
   
8. Hence when a person assaulting a police officer causing bodily harm or biting him the applicable penalty would be 10 years imprisonment.
   
9. In this case you committed these offences on 25^th March 2018, hence you are subject to this new amendment with the increased penalty.
   
10. Since the parliament has increased the maximum penalty of this offence from 05 years to 10 years for certain categories, applying the tariff in State v Batiratu(supra) for these situations would be contrary to intention of the Parliament.
    
11. Section 17 of the Sentencing and Penalties Act, provides:
    

“If an offender is convicted of more than one offence founded on the same facts, or which form a series of offences of the same or a similar character, the court may impose an aggregate sentence of imprisonment in respect of those offences that does not exceed the total effective period of imprisonment that could be imposed if the court had imposed a separate term of imprisonment for each of them.”

12. The offences that you convicted are similar nature and hence I am going to impose an aggregate sentence of imprisonment for these 3 counts pursuant to section 17 of the Sentencing and Penalties Act.
    
13. Considering the objective seriousness I select 12 months as the starting point for your aggregate sentence.
    
14. There are no aggravating factors and in mitigation you submitted that you are 39 years old, married with 04 children and a farmer. You have a previous conviction from 2015 and hence not entitle for discount for your previous good behavior.
    
15. For your personal mitigating factors I deduct 03 months to reach 09 months imprisonment.
    
16. Now I would consider whether to suspend your sentence pursuant to section 26(2) (b) of the Sentencing and Penalties Act.
    
17. The violent attacks on those who work in law enforcement services are an attack on society itself. The peaceful enjoyment of life by every citizen in Fiji is dependent on the jobs police officers perform each day. Hence severe sentences would be warranted for people who commit this kind of offence. Accordingly I find a custodial sentence is warranted in this case to denounce the behavior of the accused and deter others from similar kinds of offences in future.
    
18. SIKELI TABATI, accordingly you are sentenced to 09 months imprisonment for this charge.
    
19. 28 days to appeal

Shageeth Somaratne
Resident Magistrate