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Buliciri v The State [1993] FJHC 17; HAA0001j.1993s (25 February 1993)

IN THE HIGH COURT OF FIJI
At Suva
Appellate Jurisdiction

CRIMINAL APPEAL NO. 1 OF 1993

Between:

FILIPE MAKA BULICIRI
Appellant

- and -

THE STATE
Respondent

Mr. A. Seru for the Appellant
Mr. J. Naigulevu for the Respondent

JUDGMENT

On the 20th of August 1992 the appellant was convicted before the Magistrate Court, Suva upon his plea of 'guilty' to an offence of Causing Grievous Harm and various other traffic offences arising out of the incident.

Upon his conviction and after hearing 2 character witnesses on behalf of the appellant (including his father) and his counsel in mitigation the learned trial magistrate passed a sentence of 2 years imprisonment for the offence of Causing Grievous Harm. In respect of the traffic offences, although the Court record is unclear, the appellant's Petition of Appeal records that fines totalling $105 were imposed in default 90 days imprisonment.

The appellant now appeals against the sentences imposed on the sole ground that it is "harsh and excessive in all the circumstances of the case".

It is therefore necessary to consider the factual "circumstances of the case" which are set out in a written 'Outline of Facts' submitted to the learned trial magistrate.

Very briefly, on the early morning of New Year's day 1992 the victim a 36 year old married businessman gave a lift to 2 women from Ratu Mara Road to the Golden Dragon Niteclub. At the niteclub the appellant at the invitation of the women joined the group which then proceeded to the Suva Grammar School compound. At the school the group "paired-off" and went their separate ways. They regrouped after about 30 minutes and the 2 women went off leaving the appellant and the victim together. On their return they saw the appellant assaulting the victim.

As a result of the assault which included punches and kicks, the victim was rendered unconscious. The appellant then removed the victim's car keys and with the 2 women they left the scene in the victim's car. The car was eventually recovered from Waiyavi in Lautoka where it had been abandoned.

The victim was later "found" by a police patrol on the evening of New Year's day still unconscious and badly bruised. He was taken to the C.W.M. Hospital where he remained in a comatose state for a further 30 days.

A medical report on the victim's condition at the time diagnosed, what may collectively be described as serious head injuries. Eight months later the victim's "... speech is still slurred ... and he (can) just manage to walk on his own with some difficulty". So much then for the facts of this case.

The learned trial magistrate in passing sentence quite correctly described the victim's beating as both "merciless and senseless" and his injuries as "substantial and serious".

At the hearing of the appeal learned counsel for the appellant emphasised the relative youth of the appellant who is 18 years of age, and his hitherto unblemished record and urged the Court to suspend the remainder of his prison term.

Learned State Counsel for his part without seeking to ignore the seriousness of the offence or the victim's injuries accepted that the trial magistrate could have imposed a shorter prison term.

I say at once that the learned trial magistrate was perfectly correct in considering and rejecting a suspended prison sentence. Such a sentence is wholly inappropriate in a case where gratuitous physical violence has been used to cause serious bodily injury.

I accept however that having regard to the appellant's youth and the absence of any "explanation" for the assault the Court might have benefited from the report of a social welfare officer. None was sought at the time and no useful purpose would be served in requesting one at this stage.

The appellant has already served 6 months of his prison term and hopefully has learnt a salutary lesson from that experience.

I accept that a custodial sentence was inevitable in this case but equally the learned trial magistrate was deprived of the assistance of a social welfare report and appears to have overlooked the appellant's plea of 'guilty'.

In my considered view where an immediate custodial sentence is necessary the sentencing Court must be careful to ensure that the sentence imposed is as short as possible, consistent with the Court's duty to protect the public interest and to punish and deter the offender.

In this regard a young first offender may be dealt with equally justly and effectively by a short sentence of imprisonment as by a long one. The proven effectiveness of administering a "short sharp shock" to such an offender cannot be ignored.

In the circumstances without criticising in any way the nature of the sentence imposed I consider that it is longer than necessary. Accordingly the sentence is reduced to one which will permit the appellant's immediate release.

However as a "reminder" and in order to ensure that the appellant remains on the "straight and narrow" I order under Section 41 of the Penal Code that the appellant enter into his own recognizance in the sum of $100 with his father as surety in like sum on condition that the appellant shall keep the peace and be of good behaviour for a period of 12 months and it is further ordered that the appellant remain imprisoned until such time as the above recognizances are entered into.

(D.V. Fatiaki)
JUDGE

At Suva,
25th February, 1993.

HAA0001.93S