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Rokotuiveikau v The State [1993] FJHC 21; Haa0083j.1992s (8 March 1993)

IN THE HIGH COURT OF FIJI
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 83 OF 1992

BETWEEN:

APOROSA ROKOTUIVEIKAU
Appellant

AND

STATE
Respondent

Appellant in Person
Mr. W. Foster for the Respondent

Date of Hearing: 8th March 1993
Date of Judgment: 8th March 1993

JUDGMENT

The Appellant appeals against the severity of a sentence of two and half years imprisonment passed on him by the Magistrate's Court at Nausori on 1st April 1992.

The Appellant had pleaded guilty to a charge of unlawfully wounding his brother Sikeli Sawavu with a cane knife with intention to do grievous harm.

From the agreed facts presented to the Learned Magistrate the offence was the culmination of a land dispute involving the Appellant and another brother and the Complainant and other brothers who until about 1990 all belonged to the same Mataqali NAVUNIKOKA of Tailevu.

In about 1990 the Appellant and another brother Sanaila left the Mataqali NAVUNIKOKA and joined the Yavusa DOLENASAU GROUP. This led to divisions and factions being created in the local community.

The matter was brought to the notice of Ratumai Sawakasa and a meeting was then held at Korovou town to discuss the matter.

At this meeting which was attended by Ratumai Sawakasa, the Complainant and other village elders and the Appellant, Sikeli Sawavu presented a tabua to Ratumai Sawakasa to resolve the dispute and asked that the Appellant should return to his original Mataqali.

The tabua was received and accepted but the Appellant left the meeting and went to his house.

After the meeting as the Complainant was returning to his house he was confronted by the Appellant and his brother who began swearing at the Complainant, saying, "Mother Fucker. You were the cause of this trouble." Thereupon the Appellant ran into his house and brought a long handled cane knife and told the Complainant that he was going to chop him.

The Complainant did not run away immediately thinking that as the Appellant was his brother he would not assault him. Soon afterwards he realised that the Appellant was serious whereupon the Complainant turned around and began to run away.

As he did so the Appellant swung the knife at the Complainant's neck and his right arm causing a deep cut. The Appellant then struck the Complainant's back. By this time the Complainant was bleeding profusely and was rescued by other villagers who also stopped the Appellant. At this stage the Complainant collapsed and was conveyed to Korovou Hospital where he was an in-patient for two weeks.

According to the Medical Officer at the Korovou Hospital the Complainant suffered three principal injuries:

1. A severe clean cut around the side of his back causing bone to be exposed at the spine and an injury to the muscle of the spine and scapula which was severed. This cut measured 18 cm long by 8 cm wide.

2. An elongated severe clean cut to the right arm involving muscle and nerves, this cut measuring 17 cm long by 5 cm wide.

3. Bruises and painful right fore-arm.

Before me this morning the Appellant attempted to give a slightly different version of the events saying that his brother the victim had used the expression "Mother Fucker" and thus provoked the Appellant. I do not accept the Appellant's version this morning but prefer the statement of facts given in the Magistrate's Court which led to the Appellant pleading guilty to the charge.

The Learned Magistrate stated when sentencing the Appellant that it was a case of attempted murder. I cannot accept this description which is clearly exaggerated but, that said, there can be no doubt that the Appellant caused his victim very serious injuries.

There is undoubted ill-feeling between the Appellant and his brother and the Appellant quite frankly admitted to me this morning that this ill-feeling still exists.

However the courts have said time and again that the way to resolve personal disputes is not by violence and the use of offensive weapons, such as in this case a cane knife, but by peaceful means.

The Complainant was prepared to attempt a peaceful resolution of the dispute between himself and the Appellant but obviously this was not satisfactory to the Appellant.

I have taken into account all the matters put to me by the Appellant whom I am prepared to regard as a first offender. His only previous trouble with the law was in September 1975 when he was placed on probation for carrying an offensive weapon but since then he has never broken the law and for this he is to be commended.

Notwithstanding this however I do not consider that the sentence imposed by the Learned Magistrate in Nausori was manifestly excessive.

In two English cases the Court of Criminal Appeal held that sentences of two years and three years were not excessive for assaults with a knife.

In the first of these cases R. v. William John Buchanan (1980) 2 Criminal Appeal Reports 13, the Court held that an assault with a knife arising from a domestic dispute warranted a sentence of two years imprisonment which had been imposed by the lower Court.

In R. v. Bal Singh Kang (1982) 4 Criminal Appeal Reports 152, the Court upheld a sentence of three years imprisonment for wounding with a knife and emphasised that in England such assaults will not be tolerated by the Courts.

They will also not be tolerated by the Courts of Fiji.

Learned Counsel for the State Mr. Foster also very correctly referred me to two local cases decided by the High Court in Lautoka, State v. Munsami Chetty No. 36 of 1990 and State v. Satruhan No. 11 of 1991. In Chetty the Appellant struck his victim on the neck and face with a knife, one of the cuts caused being about a half inch in size, which penetrated muscle and the external jugular vein. The Court upheld the sentence of two years imprisonment but said in all the circumstances including various mitigating factors, this should be suspended.

In Satruhan the Appellant had committed an unprovoked attack with a cane knife on a helpless woman, his wife. Again there were mitigating factors and the Court held that a sentence of two years imprisonment was warranted but suspended this for three years.

These latter cases can be distinguished from the facts of the instant case and do not persuade me that the sentence imposed by the Learned Magistrate on the Appellant was manifestly excessive. The appeal is therefore dismissed.

JOHN E. BYRNE
J U D G E

HAA0083J.92S