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State v Nayakuyaku - Sentence [2019] FJMC 170; Criminal Case 155 of 2019 (10 December 2019)

IN THE MAGISTRATES’ COURT OF FIJI
AT TAVUA
CRIMINAL JURISDICTION

Criminal Case No: 155 - 2019
STATE
-v-
FILIPE NAYAKUYAKU

Before : RM Fotofili L.

For Prosecution : WPC Priya P. [ Police Prosecution ]

Accused : In Person, Waived Right To Counsel
Date of Sentence : 10^th December 2019

SENTENCE

BACKGROUND

1. FILIPE NAYAKUYAKU, you are here to be sentenced upon pleading guilty to the following charge:
   

Statement of Offence

CRIMINAL INTIMIDATION: Contrary to section 375 ( 1 ) ( a ) ( iv ) of the Crimes Act No: 44 of 2009.

Particulars of Offence

FILIPE NAYAKUYAKU on the 12^th day of July, 2019 at Davota, Tavua in the Western Division without lawful excuse threatened VIJENDRA SHARMA.

2. I am satisfied that your guilty plea to the charge is voluntary and that you understand the consequence of your plea. The evidence tendered in support of your plea and your admission, supports your guilty plea.
   
3. The victim was at his home at Davota. This was around 9pm. You came to the victim’s house and asked the victim if he could drop you off at Matanagata. You swore at the victim saying ‘Magaitinamu’ [ your mother’s vagina ] and ‘kawa ca’ [ having a bad lineage ]. You picked up stones and threw it on top the victim’s roof top.
   
4. The matter was reported to police after. You were arrested and interviewed by the police. You admitted that you are part of a gang cutting the victim’s sugar cane. You stay at another of the victim’s property close to the victim’s house. You were drinking homebrew. You cannot remember whether you woke the victim or were throwing stones. You cannot remember whether you were swearing. You seek forgiveness from the victim.
   
5. You were remanded for 7 days and I see no reason why you should not have been bailed with conditions when you first appeared and I will consider these 7 days in remand as time served and I will deduct this from your sentence.
   
6. You are not a first offender. You have an attempted rape conviction in 1999, common assault in 2011 and drunk and disorderly 2017.
   
7. You will not be treated as a first offender.
   
8. You are 36 years. You are married with 3 children. You seek forgiveness and promise not to reoffend.
   

LAW

9. The maximum sentence that is imposable by law for the offence of criminal intimidation is up to 5 years imprisonment.
   

TARIFF

10. The sentencing range or tariff can be between 12 months imprisonment to 4 years imprisonment [ State v Baleinabodua [2012] FJHC 981; HAC145.2010 ( 21 March 2012 ).
    
11. The above sentencing range is applicable to a charge of criminal intimidation which attracts a maximum imposable sentence of 10 years imprisonment.
    
12. The prosecution have charged you with a category of criminal intimidation which attracts a maximum imposable sentence of up to 5 years imprisonment.
    
13. My brother Magistrate in State v Delai [ 2013 ] FJMC; Criminal Case 266.2012 ( 14^th January 2013 ) stated that the tariff for criminal intimidation with 5 years imprisonment as the maximum sentence, should be between 6 months to 2 years imprisonment.
    
14. I find this 6 months to 2 years imprisonment tariff or range appropriate.
    

STARTING POINT

15. Considering the objective seriousness of the offence, a 7 month imprisonment term is selected as a starting point.
    

AGGRAVATING FEATURE

16. You came to the victim’s house. This was at night.
    
17. You were drunk.
    
18. You said profanities.
    
19. You threw stones on the victim’s roof.
    
20. Your sentence is increased to 14 months imprisonment.
    

MITIGATION

21. I accept that you are remorseful.
    
22. Although you could not remember much, I accept that you told police what you could remember. In that sense, you have cooperated with police.
    
23. You have a family to support.
    
24. Your sentence is reduced to 9 months imprisonment.
    

GUILTY PLEA

25. You have pleaded guilty early.
    
26. For that, your sentence is reduced to 6 months imprisonment.
    

SUSPENSION & OBJECTIVE OF YOUR SENTENCE

27. I can suspend your imprisonment term either in whole or in part pursuant to section 26 ( 2 ) ( b ) of the Sentencing and Penalties Act 2009.
    
28. You sentence will be aimed at deterrence and is to punish you adequately.
    

FINAL SENTENCE

29. You are sentenced to 6 months imprisonment.
    
30. I will deduct 7 days from your sentence for your time in remand.
    
31. You have 5 months and 21 days remaining.
    
32. Your remaining term will be suspended in part.
    
33. 5 months out of your remaining term will be suspended for the next 3 years.
    
34. Do not commit any other offence [ punishable with imprisonment ] in the next 3 years or you risk this 5 months imprisonment held in waiting being activated.
    
35. You will serve 21 days imprisonment immediately.
    
36. 28 days to appeal.
    

.....................................
Lisiate T.V. Fotofili
Resident Magistrate

Dated at TAVUA this 10^th day of December, 2019