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Tuigulagula v State [2012] FJCA 18; AAU0070.2011 (21 March 2012)

IN THE COURT OF APPEAL, FIJI
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. AAU0070/11
[Criminal Case No. HAC 081 of 2010
in the High Court sitting at Lautoka]

BETWEEN:

EMOSI TAKU TUIGULAGULA
Appellant

AND:

THE STATE
Respondent

BEFORE THE HON. JUSTICE OF APPEAL –
MR JUSTICE KANKANI CHITRASIRI

COUNSEL: The Appellant - in person
Ms Whippy. I. for the Respondent

Date of Hearing : 15th march 2012
Date of Judgement: 21st March 2012

RULING ON LEAVE TO APPEAL AGAINST THE SENTENCE

1. This is an application for leave to appeal against the sentence imposed, on the Appellant by the learned High Court Judge sitting at Lautoka High Court, on 15th March 2011.
   
2. The Appellant was convicted on the 16th February 2011 on his own plea of guilty to the offence of causing grievous harm with a cane knife, to his wife Melaia Marama contrary to Section 255(a) of the Crimes Decree No.44 of 2009.
   
3. Accordingly, the Appellant was sentenced to a term of imprisonment of six years of which he is to serve a minimum of 4 years before him being eligible for parole.
   
4. Being aggrieved by the aforesaid sentence, the Appellant filed this appeal moving for a lesser punishment. This appeal was lodged by way of two letters dated 20th March 2011 and 12th July 2011 addressed to the Registrar of the Court of Appeal. In the subsequent letter dated 12th July 2011 he has advanced the following grounds of appeal. I quote:
   
   1. That the trial judge erred in law when he failed to judiciously investigate in a fair manner all the circumstances of my (case) only relying on Police investigations and the victim;
      

(b) The trial judge erred in law when he failed to acknowledge and investigate in a judicious manner "the act of provocation" by the victim when she openly conversed with her "lover" boy friend on the phone in the presence of her husband, the Appellant;

(c) The provocation was most severe and intended to harm and destroy the institution of marriage and the family of the Appellant, an irreparable loss calculated to bring about an immediate and sudden end to the appellant's and victims marriage lives; and

(d) The sentence ordered by the court is excessive and very harsh.

5. The Court of Appeal is empowered to vary a sentence imposed on an accused under Section 23:3 of the Court of Appeal Act. [chapter 12]. A person who intends to invoke jurisdiction of the Court of Appeal, under the said provision of law in Fiji, should first obtain leave of Court under Section 21 (1) (b) of the said Act. Accordingly, this application has been filed to obtain leave of this Court to proceed with the appeal filed by the appellant in this case. In this appeal the appellant has sought to have a punishment lesser than the punishment imposed on him, relying upon the aforesaid grounds of appeal. Hence, I would now examine the facts and the law relevant to this case to ascertain whether the leave could be granted enabling the appellant to argue his appeal before the Full Court.
   
6. At the time the sentence was imposed by the learned High Court Judge, His Lordship has carefully considered the background to the incident, the offence, merits of the case and the law relevant thereto. Before he imposed the sentence on the appellant, he has addressed his mind to the relevant authorities as well. Having considered those matters, he has decided upon the starting point of the "tariff" that is applicable in this instance. Learned High Court Judge then, after having considered the aggravating and mitigating features presented to him had concluded that the Accused should serve a minimum of four years imprisonment before he is eligible for parole.
   
7. Against this background, I will examine whether the merits of the grounds of appeal advanced by the appellant would permit for this Court to grant leave to have the appeal being heard by a Full Court. The first ground of appeal is in respect of the reliance on Police investigation by the learned trial Judge when he passed the sentence on the appellant. Such a ground does not help to vary a sentence imposed on an accused though it may be a reason to vary a conviction which is not the issue in this instant.
   
8. The Appeal grounds (b) and (c) relate to the provocation alleged to have been caused by the victim at the time of the incident. In fact, this is the main ground of appeal that has been brought forward before this Court. Even the written submissions tendered to Court by the appellant on the day of the hearing, relate only to that point. On that date, without addressing Court on the other grounds of appeal, he wished to confine himself to those written submissions tendered in open Court.
   
9. According to the Appellant, his wife, the victim had been on a telephone call with her boyfriend and that provoked him to strike her with a cane knife. Attending to a telephone call cannot be treated as a matter to get provoked to the extent of striking his own wife with a cane knife that resulted nearly to make her a disable. In such a situation the Appellant should have taken some other step without striking her with a cane knife. Evidence reveals that the appellant had struck on her head and on her hands severing eight fingers leaving only the two thumbs. Accordingly, it is my view that the learned High Court Judge is correct when he decided that there was no provocation whatsoever by the victim of the Accused, particularly when she was unarmed.
   
10. The next ground of appeal is that the sentence imposed is excessive and harsh. The victim is now without eight fingers of her two hands. The blow on to the head has caused her serious injuries. The trauma she has had consequent to the attack is of a grave nature. Therefore, I do not think that the sentence imposed on the appellant is harsh and excessive.
    
11. The learned High Court Judge has referred to the relevant authorities such as Shaukat Ali (1976) 22 FLR 87 and the case of Mokubula (2003) FJHC 164, when he chose the applicable "tariff" and decided on the starting point thereof, before imposing the sentence. Therefore, it is clear that His Lordship has properly understood the law governing applicability of tariff and the way the sentence is to be determined having set the correct starting point. Hence, I don't see any wrong in the manner that the learned Judge determined the term of imprisonment considering the relevant tariff, before the sentence was passed. Hence, it is my opinion that the ground of appeal in relation to the consideration of tariff has no merit.
    
12. In the circumstances, I decide that the sentence imposed on the appellant is appropriate in all the circumstances; it is neither harsh nor excessive.
    

Accordingly, I refuse leave to appeal against the sentence.

Dated at Suva on this 21st day of March 2012.

KANKANI T. CHITRASIRI
JUSTICE OF APPEAL