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State v Vata [2010] FJHC 481; HAC078.2009 (29 October 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC 078 0F 2009

BETWEEN

STATE
STATE

AND

ILIESA VATA
THE CONVICT

Counsel: Ms. E. WHIPPY, State Counsel – Counsel for State
Mr. T . Terere - For the Convict

Date of Trial/Plea : 27th October, 2010
Date of Hearing of
Sentencing Submissions : 28th October, 2010
Date of Sentence : 29th October,2010

RULING ON SENTENCE

1. You - Iliesa Vata- pleaded guilty to the charge of 'Assault Occasioning Actual Bodily Harm' on 27th, October, 2010 on the amended information. Court, after considering that your plea of guilt was voluntary and free from influence, proceeded to convict you on your plea. Summary of facts, as submitted by the State on 27th October, 2010, was admitted by you. Learned counsel for the State and your counsel, thereupon, moved for time until 28th October, 2010 to make submissions on the matter of sentence. Written submissions were accordingly filed and they were helpful in forming court's opinion as to the 'just and appropriate sentence' as set out under the Sentencing and Penalties Decree No 42 of 2009.
   
2. Facts revealed that the victim - Senivalati Vakatalesau - was suspected of stealing cucumber from your farm, which you cultivated to make some additional income. You looked for him and as he was found to be hiding under a bed in the house of Mata, on 02nd August, 2009, you went into Mata's house. Mata was an aunt of Vakatalesau. Vakatalesau was a nephew of yours.
   
3. You kicked the victim twice in the face as he failed to obey your request to come out from the hiding. No sooner, the victim got into a state of fit, and he was taken out for a massage by you. As he did not respond, he was taken to the hospital, where he was pronounced to have been dead.
   
4. According to the Post-Mortem Report, no fractures and haemorrhages were observed. However, as admitted by you, your kick had caused some bruise underneath an eye of the victim. In the expert opinion of Dr Goundar, who performed the autopsy, the death of the victim did not ensue as a result of the kicking by you but '...most probably...' from 'an attack evoked by high emotion and fear surrounding the circumstances on the day'. The cause of death was given as 'acute asthmatic attack'. The expert opinion dated 26th October, 2010 was filed of Record.
   
5. In light of this medical evidence, the State amended the charge to that of an 'Assault Occasioning Actual Bodily Harm' to which, you pleaded guilty. Amendment was made on 27th October, 2010, as the case was listed for trial.
   
6. The tariff for the offence is from a suspended sentence to a nine-month imprisonment. The higher scale is for cases where the assault is more serious involving weapons and/or bodily injuries. (State v Nayacalagilagi: 2009: FHHC 73; HAC 165/2007).
   
7. Having regard to the facts of this case, I pick up a period of six-month imprisonment as the starting point and proceed to determine the just and appropriate sentence to suit the aggravating and mitigatory factors as set-out below.
   
8. You were 45 years of age and you were an uncle of the victim. The victim was only 17 years of age. You appear to have over-reacted over the issue of theft of cucumber by the victim from your farm. You have not made use of the traditional system available in the community to resolve a minor dispute such as this with a minor. It seems that you have ventured to take the law into your own hands. This aspect of the matter is an aggravating circumstance, which requires an enhancement of the sentence. I, accordingly, add another six months to make it a twelve-month imprisonment.
   
9. There are no previous convictions shown against you. Court, therefore, considers you as a first offender. You had studied upto class 5 only in primary school. You are currently employed as a security officer at a hardware shop. You are married with five children; and, your wife and the children are totally dependent on you. You have co-operated with the police and surrendered to the police no sooner the death of the victim was pronounced. You were remorseful and saved the time of court by pleading guilty to the charge at the first available opportunity.
   
10. I reduce three months for your personal background and for the history free from criminal record and another three months for your remorse and early guilty plea. Thus, I return at six- month imprisonment.
    
11. I, accordingly, sentence you to a term of six month imprisonment. I am of the view that it is appropriate to suspend your sentence for five years under Section 26 (1) and (2) of the Sentencing and Penalties Decree. Effect of a suspended sentence and consequences of its violation are explained to you in terms of Section 28 of the Decree.
    

PRIYANTHA NAWANA
PUISNE JUDGE

HIGH COURT, LAUTOKA.
29TH COTOBER, 2010