IN THE HIGH COURT OF FIJI
AT LABASA
[CRIMINAL JURISDICTION]
CRIMINAL CASE NO: HAC 79 of 2018

STATE
V
JESE MATEAVULA TOMA

Counsel	:	Ms. Amelia Vavadakua for the State
Ms. Karen Boseiwaqa for the Accused    

Dates of Trial	: 	24-26 June 2019  
Summing Up	: 	27 June 2019 
Judgment	:	27 June 2019 
Sentence	:	28 June 2019 

SENTENCE

[1]	Jese Mateavula Toma you were charged with the following offence:  

FIRST COUNT
Statement of Offence
ACT WITH INTENT TO CAUSE GRIEVOUS HARM: Contrary to Section 255 (a) of the Crimes Act 2009.
Particulars of Offence
JESE MATEAVULA TOMA, on the 20th day of October 2018, at Delaivuna Settlement, in Taveuni, in the Northern Division, with intent to cause grievous harm to LEONE LEQEUA, unlawfully wounded the said LEONE LEQEUA. 

[2]	You pleaded not guilty to the above mentioned charge and the ensuing trial was held over 3 days.  
[3]	At the conclusion of the evidence and after the directions given in the summing up, by a unanimous decision, the three Assessors found you guilty of the charge of Act with Intent to Cause Grievous Harm. 
[4]	Having reviewed all the evidence, this Court agreed with the unanimous opinion of the Assessors finding you guilty of the charge. Accordingly, you were convicted of Act with Intent to Cause Grievous Harm, in terms of Section 255 (a) of the Crimes Act No. 44 of 2009 (Crimes Act).
[5]	In support of their case, the prosecution called the complainant, Leone Leqeua and Dr. Kasanita Emmanuel. You testified on your own behalf.
[6]	The complainant, who is your brother-in-law, testified as to the manner in which you repeatedly struck him with a cane knife and thereby caused grievous injuries to him. The Medical Officer, Dr. Kasanita Emmanuel, who conducted the medical examination on the complainant, confirmed that the injuries caused to the complainant were very serious in nature.
[7]	It has been proved that on 20 October 2018, at Delaivuna Settlement, in Taveuni, you unlawfully wounded the complainant, Leone Leqeua, with the intention to cause grievous harm to him.
[8]	Section 4 of the Sentencing and Penalties Act No. 42 of 2009 (“Sentencing and Penalties Act”) stipulates the purposes for which sentencing may be imposed by a Court; and sets out the relevant factors that a Court should take into account during the sentencing process. I have duly considered these factors in determining the sentence to be imposed on you.
[9]	In terms of Section 255 (a) of the Crimes Act “A person commits an indictable offence if he or she, with intent to maim, disfigure or disable any person, or to do some grievous harm to any person, or to resist or prevent the lawful arrest or detention of any person— 
(a)	Unlawfully wounds or does any grievous harm to any person by any means……” 
The prescribed penalty for this offence is imprisonment for life. 
[10]	The offence of Act with Intent to Cause Grievous Harm also existed under the Penal Code (Section 224 of the Penal Code), with the same prescribed penalty of life imprisonment.
[11]	In State v. Maba Mokubula [2003] FJHC 164; HAA 52J.2003S (23 December 2003); Her Ladyship Madam Justice N. Shameem said:
"On the basis of these authorities, the tariff for sentences under section 224 of the Penal Code, is between 6 months imprisonment to 5 years imprisonment. In a case of an attack by a weapon, the starting point should range from 2 years imprisonment to 5 years, depending on the nature of the weapon. 
Aggravating factors would be: 
1.	Seriousness of the injuries;
2.	Evidence of premeditation or planning;
3.	Length and nature of the attack;
4.	Special vulnerability of the victim;
Mitigating factors would be:
1.	Previous good character;
2.	Guilty plea;
3.	Provocation by the victim;
4.	Apology, reparation or compensation.
In general terms, the more serious and permanent the injuries, the higher the sentence should be. As a matter of principle, a suspended sentence is not appropriate for a case of act with intent to cause grievous harm……”
[12]	His Lordship Justice Madigan in State v. Emosi Taku Tuigulagula [2011] FJHC 163; HAC 31.2010 (15 March 2011); stated thus:
“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.” 
[13]	In State v. Seremaia Nalulu & 4 others [2013] FJHC 358; HAC 155.2010 (23 July 2013); His Lordship Justice Paul Madigan, while adopting the above tariff held as follows:
“The maximum penalty for act with intent to cause grievous harm contrary to Section 255(a) of the Crimes Decree 2009 is life imprisonment. Despite the accepted tariff being between 6 months and 5 years (as set by Shameem J in Mokubula (2003) FJHC 164) much higher sentences have been passed when the circumstances dictate. In Tuigulagula HAC 81 of 2010 this Court passed a sentence of six years on a husband who did very serious harm to his wife. The penalty being life imprisonment, it is to be regarded as a very serious offence indeed and sentences of up to 8 years would not be out of order.”
[14]	Having regard to the above authorities, I consider the tariff for the offence of Act with Intent to Cause Grievous Harm in the instant case to be between 2 years to 5 years imprisonment.
[15]	In determining the starting point within the said tariff, the Court of Appeal, in Laisiasa Koroivuki v State [2013] FJCA 15; AAU 0018 of 2010 (5 March 2013); has formulated the following guiding principles:
	“In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this time.  As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff.  After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff.  If the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range.”
[16]	In the light of the above guiding principles, and taking into consideration the objective seriousness of the offence, I commence your sentence at 2 years imprisonment.   
[17]	The aggravating factors in this case are as follows:
	(i)   	The attack on the complainant was prolonged. 
	(ii)	The attack happened at the complainant’s own residence. You showed no regard to the complainant’s rights and his personal safety.
	(iii)	Due to the attack the complainant had to run away from his own house in the dead of the night and hide behind the banana plantations. 
	(iv)	You attacked the complainant in the presence of his wife and children.
	(v)   	You caused serious injuries to the complainant. The complainant has now lost mobility of his left palm. He testified that he cannot clench his left palm into a fist. Due to the injuries caused on the complainant several scars can be seen on his left hand, most of which would be permanent in nature.
[18]	In mitigation it is submitted that you are a first offender. This has been confirmed by the State. It is also submitted that you deeply regret your acts and seek the mercy and forgiveness of Court. You have submitted that you are remorseful of your actions. You maintain that you never intended to harm the complainant.  
[19]	You are said to be 32 years of age. You testified that you got married in January 2018. You had lost your only child when the child was 4 months old. You said to be a yaqona farmer earning $50 per week and you are the sole breadwinner of your family. It is the opinion of this Court that these are personal circumstances and cannot be considered as mitigating circumstances. The only mitigating factor in your favour would be your previous good character. 
[20]	Considering the aforementioned aggravating factors, I increase your sentence by a further 5 years. Now your sentence is 7 years. For your previous good character I reduce 2 years. Now your sentence is 5 years.
[21]	Accordingly, I sentence you to a term of 5 years imprisonment. Pursuant to the provisions of Section 18 of the Sentencing and Penalties Act, I order that you are not eligible to be released on parole until you serve 4 years of that sentence.

 [22]	Section 24 of the Sentencing and Penalties Act reads thus: 
	“If an offender is sentenced to a term of imprisonment, any period of time during which the offender was held in custody prior to the trial of the matter or matters shall, unless a court otherwise orders, be regarded by the court as a period of imprisonment already served by the offender.”

[23]	You have been in remand custody for this case from 22 October 2018 until 11 December 2018, the day on which you were granted bail by this Court. This is a period of nearly 2 months. The period you were in custody shall be regarded as period of imprisonment already served by you. I hold that a period of 2 months be considered as served by you in terms of the provisions of Section 24 of the Sentencing and Penalties Act. 
[24]	In the result, you are sentenced to a term of imprisonment of 5 years with a non-parole period of 4 years. Considering the time you have spent in remand, the time remaining to be served is as follows:
			Head Sentence	-	4 years and 10 months.
			Non-parole period	-	3 years and 10 months.

 [25]	You have 30 days to appeal to the Court of Appeal if you so wish. 

Riyaz Hamza
JUDGE
HIGH COURT OF FIJI

AT LABASA
Dated this 28th Day of June 2019

Solicitors for the State	: 	Office of the Director of Public Prosecutions, Labasa.
Solicitors for the Accused	: 	Office of the Legal Aid Commission, Labasa.