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State v Tuigulagula [2011] FJHC 163; HAC031.2010 (15 March 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Case No. HAC 081 of 2010

STATE

v

EMOSI TAKU TUIGULAGULA

Ms I. Whippy for the State
Mr. E. Maopa for the Accused

Date of Hearing: 16 February and 10 March 2011
Date of Sentence: 15 March 2011

SENTENCE

[1] On the 16th February 2011, the accused entered a plea of guilty to the following charge:

Statement of Offence

ACT WITH INTENT TO CAUSE GRIEVOUS HARM: Contrary to section 255(a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

EMOSI TUIGULAGULA on the 9th day of June 2010 at Yako Village, Nadi in the Western Division, struck MELAIA MARAMA with a cane knife, causing her grievous harm.

[2] On the 10th March 2011 he agreed a set of facts which as repugnant that they be are rehearsed verbatim hereunder.

FACTS

[3] "On the 9th of June 2010 at about 8.30am at Yako Village in Nadi the accused Emosi Taku Tuigulagula struck his wife Melaia Marama with a sharpened cane knife. The accused and the complainant had just reached home when the complainant's phone rang. As she answered the call she walked into their bedroom. The accused then came to the bedroom door and told her to come outside and accompany him to their plantation. When the complainant continued to talk on the phone the accused tried to jemmy the bedroom door open with the cane knife he was holding but the complainant opened the bedroom door and came out into the living room.

When the complainant came into the living room the accused struck the back of her head with the cane knife in his hand. She cowered after this first strike and she covered her head with her right hand. The accused struck the complainant again, severing half of the complainant's palm along with the attached fingers, leaving only the thumb. The complainant then covered her head with her left hand upon which the accused landed another blow with his knife. He again severed half of her left palm along with her attached fingers, leaving only her left thumb. The complainant then bent down to protect herself and begged the accused to stop but he lifted the knife once more and hit the complainant's back with the blade of the knife lying flat.

At about 9am the accused along with his daughter took the complainant who had sustained a multiple of injuries to the Nadi Hospital, she was later transferred to the Lautoka Intensive Care Unit due to the seriousness of her injuries.

The complainant has only two thumbs on both hands, the rest of the hand has been completely severed, she also suffered injuries to her scalp and was traumatized by the incident".

[4] The accused was convicted on his plea and on agreement to the facts so proffered.

[5] The accused is married to the victim and is 50 years old. His wife is 29 years old. He holds the title of Turaga-ni-Yavusa Nakaraia at Yako Village. They have 3 children all attending primary school in Ba. The couple are now estranged – the wife living with her parents in Ba and taking responsibility for the children.

[6] The accused says that he wants to take up his role again of pater familias, however this will not happen. Apart from being "out of circulation" for some years he by his actions does not deserve to resume that role and in any event: at the hearing of 10th March, I made a domestic violence restraining order against him pursuant to section 26(1) of the Domestic Violence Decree 2009, in order to protect the victim.

Being a standard non molestation order, it will allow the victim the right to decide just how much she wants his interaction with the children on his release, short of asking the Court to vary the order in relation to the children pursuant to section 31(1) of the Decree, should she so wish.

[7] Obviously this should have been done in the Court below; however the Magistrate instead admitted him to bail and sent him back into the family home. The victim says that acts of violence continued.

[8] A village elder has commended the accused as being a man "with a humble heart who carries out his responsibilities to his people and to the church with honesty, dignity and without any complaint especially to his family and relatives".

[9] That being said I am sure that the wife would have preferred the barb of a complaint rather than having her hands chopped off.

[10] Turaga-ni-Yavusa affords the accused no special considerations; on the contrary in that role he should be setting an example to his people and being a role model in his behaviour towards others, especially to his family.

[11] The maximum penalty for this offence is life imprisonment and the Court of Appeal has said in Shaukat Ali (1976) 22 FLR 87 that for this offence a custodial sentence is inevitable. The offence is akin to section 224 of the old Penal Code and so the authorities pertaining to that section are relevant. In the case of Mokubula (2003) FJHC 164, Shameem J set out several cases of assault intending to cause grievous bodily harm and came to the conclusion that the then prevailing "tariff" was between

6 months imprisonment to 5 years imprisonment, but stressing that where a weapon was used the starting point should be 2 years. The learned Judge said that the aggravating features would be:

1. seriousness of the injuries.

2. evidence of premeditation.

3. length and nature of the attack.

4. special vulnerability of the victim.

Mitigating features would include:

1. Previous good character.
2. Guilty plea.
3. Provocation by the victim.
4. Apology reparation or compensation.
   

[12] In the instant case the injuries inflicted are very serious indeed. The victim is left with only a thumb on each hand, she has injuries to her scalp and has been traumatized by the attack. In addition, although there appears to have been no premeditation or planning the attack was prolonged and relentless, despite the victim's entreaties to cease. It is very relevant that there is a 21 year age difference between the pair, the wife being in a far more vulnerable position because of her comparative youth. There was no provocation whatsoever by the victim of the accused, and she was unarmed.

[13] The accused has a clear record and has entered a plea of guilty. For that he will receive credit.

[14] In casting my sentence, the Sentencing and Penalties Decree 2009 demands by section 4(3) that I have regard to considerations in a domestic violence context. The section reads:

"(3) In sentencing offenders for an offence involving domestic violence, a court must also have regard to –

(a) any special considerations relating to the physical, psychological or other characteristics of a victim of the offence, including –

• (i) the age of the victim;
• (ii) whether the victim was pregnant; and
• (iii) whether the victim suffered any disability;
  

(b) whether a child or children were present when the offence was committed, or were otherwise affected by it;

(c) the effect of the violence on the emotional, psychological and physical well being of a victim;

(d) the effect of the offence in terms of hardship, dislocation or other difficulties experienced by a victim;

(e) the conduct of the offender towards the victim since the offence, and any matter which indicates whether the offender –

• (i) accepts responsibility for the offence and its consequences;
• (ii) has taken steps to make amends to a victim, including action to minimize or address the negative impacts of the offence on a victim;
• (iii) may pose any further threat to a victim;
  

(f) evidence revealing the offender's –

• (i) attitude of the offence;
• (ii) intention to address the offending behaviour; and
• (iii) likelihood of continuing to pose a threat to a victim; and
  

(g) whether the offender has sought or received counseling or other assistance to address the offending behaviour, or is willing to undertake such counseling or seek such assistance."

[15] Short of loss of life or loss of a whole limb, I can imagine few circumstances of grievous bodily harm worse than those sustained in this case. For that reason I take a starting point of sentence of five years imprisonment. For further aggravating features such as a prolonged attack and vulnerability because of the age difference, I add to that another two years, making an interim total of seven years.

[16] With reference to section 4(3)(b); the children have been dislocated by having to move their schooling to Ba where the mother is residing. With regard to section 4(3)(c) and (d) the victim has had to remove herself from Yako Village and is suffering from psychological trauma. For these factors alone, and as required to do by the Decree, I add a further two years to the sentence bringing the total up to nine years.

[17] For his clear record and plea of guilty I deduct from that total three years meaning that the accused will serve a term of imprisonment of six years. He will serve a minimum of four years before he is eligible for parole.

[18] I accept that the sentence is rather severe, but given that the maximum penalty for this offence is life imprisonment, and given that far too long now offences of violence within the family home have been visited with derisory sentences, six years is condign punishment for this horrific unprovoked attack.

[19] The convict has 30 days to appeal to the Fiji Court of Appeal.

Paul K. Madigan
JUDGE
At Lautoka
15 March 2011