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State v Jeke [2010] FJHC 224; HAA010.2010 (2 July 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 010 of 2010

BETWEEN:

THE STATE
Appellant

AND:

MOSESE JEKE
Respondent

Hearing: 21st May 2010
Judgment: 2nd July 2010

Counsel: Ms M. Tikoisuva for State
Ms S. Vaniqi for Respondent

JUDGMENT

[1] The State appeals against an order of absolute discharge made by the Magistrates’ Court in favour of the respondent, after he pleaded guilty to the following offence:

Statement of Offence

ACT WITH INTENT TO CAUSE GRIEVOUS BODILY HARM: Contrary to section 224(a) of the Penal Code, Cap 17.

Particulars of Offence

MOSESE JEKE on the 26th day of January, 2009 at Naibosamoto, Lutu, Wainibuka, Naitasiri in the Central Division with intent to cause grievous harm to SERU VATILIAI unlawfully wounded the said SERU VATILIAI with a cane knife.

[2] The grounds of appeal are that the learned Magistrate erred in law and fact in discharging the respondent without conviction and that the sentence was manifestly lenient having regard to all the circumstances of the case.

[3] The discharge order was made under section 44 of the Penal Code. Section 44 provides:

(1) Where a court by or before which a person is found guilty of an offence, not being an offence for which a fixed sentence is prescribed by law, is of opinion, having regard to the circumstances including the nature of the offence and the character of the offender, that it is inexpedient to inflict punishment and that a probation order under the Probation of Offenders Act is not appropriate, the court may, with or without proceeding to conviction, make an order discharging him absolutely, or, if the court thinks fit, discharging him subject to the condition that he commits no offence during such period, not exceeding twelve months from the date of the order, and subject to such other conditions, if any, including the payment of costs or compensation, or the restitution of goods or the payment of money in lieu of goods, as may be specified in such order.

[4] In State v. Nayacalagilagi (2009) FJHC 73; HAC 165.2007 (17 March 2009) this Court considered the principles upon which the discretion under section 44 are exercised and said:

"Subsequent authorities have held that absolute discharge without conviction is for the morally blameless offender, or for an offender who has committed only a technical breach of the law (State v. Nand Kumar [2001] HAA014/00L; State v Kisun Sami Krishna [2007] HAA040/07S; Land Transport Authority v Isimeli Neneboto [2002] HAA87/02). In Commissioner of Inland Revenue v Atunaisa Bani Druavesi [1997] 43 FLR 150 HAA 0012/97, Scott J held that the discharge powers under section 44 of the Penal Code should be exercised sparingly where direct or indirect consequences of convictions are out of all proportion to the gravity of the offence and after the court has balanced all the public interest considerations."

[5] The facts show that on the day of the incident the complainant overheard his aunt gossiping about him to his grandfather. The complainant got angry and threatened to assault the aunt. The respondent was cleaning his garden with a cane knife when he heard the commotion. He ran to the complainant and hit him twice using the blunt side of the cane knife. The medical report showed the complainant received minor scratches and tenderness to his body.

[6] In mitigation the respondent said he was 29 years old, married and a farmer by profession. He was a first time offender and he showed remorse by pleading guilty on the first day he appeared in court. The complainant was his cousin and they lived in the same settlement.

[7] In his sentencing remarks the learned Magistrate noted that the respondent’s action was wrong, but understandable. After noting that the respondent was a first time offender and had pleaded guilty, the learned Magistrate discharged him without recording a conviction.

[8] The offence of act with intent to cause grievous harm is no doubt a seriousness offence. The maximum penalty for the offence is 14 years imprisonment. The offence requires a specific intention, namely, "to cause grievous harm". The offence is aggravated if a weapon is used to inflict grievous harm.

[9] The court takes a serious view to this offence. The tariff for the offence is between 6 months to 5 years imprisonment depending on the nature of attack (State v Mokubula [2003] FJHC 164).

[10] By prescribing a maximum sentence of 14 years imprisonment, the legislature has imputed moral responsibility on anyone found guilty of it. Anyone committing this offence therefore cannot escape punishment and defeat the clear intention of the legislature by an absolute discharge order.

[11] Furthermore, in my judgment, the absolute discharge order cannot be sustained even on the facts of this case. Albeit the complainant was not seriously injured, a cane knife was used to resolve a family conflict. The court should not condone use of a cane knife in a family conflict. The circumstances of the case warranted imposition of a sentence on the respondent despite his previous good character.

[12] For these reasons, I find the learned Magistrate erred in the exercise of his discretion to discharge the respondent without recording a conviction and without imposing a sentence. The learned Magistrate should have convicted the respondent and imposed an appropriate sentence. A suspended sentence would not have been wrong in principle on the facts of this case.

[13] I make the following orders:

1. Appeal is allowed.

2. Discharge order is quashed.

3. Respondent is convicted on his plea of guilty.

4. Respondent is sentenced to 6 months imprisonment suspended for 12 months [sentence explained].

Daniel Goundar
JUDGE

At Suva
2nd July 2010