| Fiji Islands - Turaganivalu v The State - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 0041 OF 1998
EN:
:
SITIVENI TURAGANIVALU
Appellant
AND:
THE STATERespondent
Appt in person
Mbr> Ms. A. Driu for the Respondent
REASONS FOR DECISION
On 26th October 1998 at the hearing of the appellant's appeal against sentence I allowed the appeal and reduced the sentence to time already served and
ordered the appellant's immediate release. I now provide my reasons for doing so.
The appellant was convicted in the Taveuni Magistrate Court on 1st June 1998 upon his guilty plea to an offence of Assault Occasioning Actual Bodily Harm. The appellant was thereafter sentenced to 12 months imprisonment. The appellant appealed against this sentence on the ground that it was harsh and excessive.
At the hearing of the appeal the appellant disputed the accuracy of the certified court record which he claimed incorrectly recorded
his plea in mitigation in so far as he had not said that he had planned 'to fix' the complainant who was making unacceptable advances towards his girlfriend who in turn, had complained (not 'told') to him . This is a significant discrepancy in that the trial magistrate was moved to observe in sentencing the appellant 'that the offence was pre-meditated and carefully planned'.
Be that as it may it is common ground that the complainant was assaulted by the appellant whilst at home convalescing and, in that
predicament, was unable to defend himself against the appellant's unexpected attack on him.
The complainant's medical examination the following morning indicates that as a result of the assault, he sustained bruising to the
head; swelling on the right forearm area; muscular tenderness to the nape and a skin abrasion on the right eyebrow. All injuries
being 'consistent with hand blows to soft tissues against a firm and hard background bone' These injuries which the trial magistrate appears to have ignored in his sentencing remarks cannot, in my opinion, be considered
either serious or life-threatening.
It is noteworthy that despite the 'admitted facts', the appellant has consistently denied 'kicking' the complainant both at the hearing of his appeal and in his caution interview (as confirmed by the State Counsel). What's more the witness to the incident 'ran away in fright' and the complainant himself made no mention of being kicked when he related the history of his injuries to the examining doctor (See: Medical Report item 12).
In somewhat similar vein the trial magistrate appears to have ignored the appellant's guilty plea and the 'reason' advanced by him for the seemingly gratuitous attack on the complainant, namely, that his (the appellant's) girlfriend had complained
to him on several occasions that the complainant had been making unsolicited sexual advances towards her. Certainly neither factor
is mentioned in the trial magistrate's sentencing remarks nor for that matter in the prosecutor's outline of facts.
I accept that the appellant's so-called 'reason' neither excuses or justifies the assault on the complainant but, if true, ought not to be ignored in considering the appropriate
sentence. The learned author on Principles of Sentencing clearly recognizes the mitigating effect of provocation in cases of violence when he said at p.184:
"It is clear (from an earlier discussion at pp 76-78) that the Courts normally makes substantial allowance in mitigation for provocation."
The appellant's record of previous convictions does not indicate that he has a propensity for resorting to violence and although the
trial magistrate appears to have quite properly ignored the appellant's criminal record in passing sentence, he improperly failed,
in my view, to give him credit for having stayed out of trouble for 2 years since his last conviction in 1996.
In this regard the learned author of Principles of Sentencing (ibid.) states at p.179:
"The fact that an offender who has a criminal record has made an effort to 'go straight' since his last conviction or release
from prison normally counts as a substantial mitigating factor if he subsequently commits an offence."
and at p.181 the following appears:
"In these cases (where the subsequent offence is related to some external pressure such as, an emotional crisis or provocation...)
the offence can be seen as a lapse from a course of conduct directed towards rehabilitation."
At the hearing of the appeal the appellant stated that he has been successful in rehabilitating himself and is gainfully occupied
with farming in his village. He professes after serving 5 months in prison, to have learnt of the futility and wastage of prison
life and seeks the opportunity to return to his village where he can continue to live a productive and useful life helping his ageing
parents.
Having carefully considered the circumstances of the case and in particular the mitigating factors that the trial magistrate appears
to have ignored or failed to consider, I was satisfied that the sentence was unduly harsh and excessive. The appeal was accordingly
allowed.
D.V. FATIAKI
JUDGE
At Suva,
5th November, 1998.
HAA0041D.98B
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