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State v Garia [2022] FJHC 113; HAC066.2021 (14 March 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 66 of 2021

THE STATE

vs

ILAISA GARIA

Counsels: Ms. Kantharia B - for State

Mr. Turaga S - for Accused

Date of Sentence: 14 March 2022

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SENTENCE

1. ILAISA GARIA, you were charged on the following information with one count to Act with Intent to Cause Grievous Harm contrary to Section 255 (a) of the Crimes Act of 2009, as below:
   

COUNT ONE

Statement of Offence

ACT WITH INTENT TO CAUSE GRIEVOUS HARM: Contrary to Section 255 (a) of the Crimes Act 2009.

Particulars of Offence

ILAISA GARIA on the 9^th day of February 2021, at Nasinu, in the Central Division, with intent to cause some grievous harm to ISIMELI CIRIMAITOGA, unlawfully wounded the said ISIMELI CIRIMAITOGA by hitting him with an iron rod.

2. You pleaded guilty on your own free will to the above mentioned count when you were represented by a legal counsel. You understood the consequences of the guilty plea for the offence you were charged with. This Court was satisfied that the guilty plea is informed and unequivocal and entered freely and voluntarily by you.

3. You agreed to the following summary of facts, when they were read to you in Court on 21/02/2022. This Court was convinced that the facts agreed satisfy all the elements of the offence you were charged with. You were found guilty and convicted on the one count, as charged.
   
4. Summary of Facts
   

Background

• The complainant herein referred to as PW1 is Isimeli Cirimaitoga, a 34 year old security officer of Sakoca.
• The accused herein referred to as A1 is Ilaisa Garia, 56 year old unemployed person.
  

Incident

• On 9^th February 2021 at around 9.30am, A1 assaulted PW1 by striking him with an iron rod whilst he was at home sleeping with his defector partner.
• When PW1 felt something hard hit his chin he opened his eyes to see A1 striking him with an iron rod.
• A1 entered PW1’s bedroom and started striking PW1 with an iron rod and when PW1 tried to block the same with his hand and his leg he sustained injuries on his chin and leg. There was blood everywhere.
• After having struck PW1, A1 went outside and told PW1’s defector partner, Mere Maramanivalu, who is also A1’s wife, my soul rests he is now injured.
• Mere Maramanivalu, referred to as PW2, was also present at the time of the alleged incident. PW2 had been separated from A1 and is now was living with PW1.
• PW2 witnessed A1 carrying an iron rod and storming into the room where PW1 and she were both sleeping. PW2 also stated that she saw A1 hit PW1 on the chin with the iron rod and continued hitting PW1 on the legs as PW1 tried to defend himself from the strikes.
• This matter was reported to the Valelevu Police station, whereby A1 was later arrested and interviewed under caution and A1 admitted to the alleged allegation.
  

5. In comprehending the gravity of the offence you have committed, I am mindful that the maximum sentence prescribed by law for Acting with the Intent to Cause Grievous Harm is imprisonment for life.
   
6. In assessing the objective seriousness of your offending in this matter, I considered the maximum sentence prescribed for the offence, the degree of culpability and the harm caused to the complainant. I gave due cognizance to the sentencing guidelines stipulated in Section 4 of the Sentencing and Penalties Decree 2009. It was revealed in the summary of facts that the incident you’re charged with was committed in the morning, at a much unsuspected moment, when PW1 was sleeping at his home. As a consequence of your assault, PW1 sustained several injuries. This is a case of violence caused due to a domestic dispute, where PW1 is your wife’s de-facto partner with whom she resides with at the time of the incident. Be informed, your disliking of abhorrent deeds of your family members cannot be compensated or answered by causing grievous harm to others against the established law in our country. Every citizen in our community should have the option what to choose to suit their interests, as long as that does not cause physical harm to anybody. Further, even if any other form of harm is caused to anybody by the choice of a citizen, laws are in place in our country for the victim to seek redress by other available means. However, the Courts have a responsibility to discourage and deter behavior of anybody that cause physical harm to other members in our community.
   

7. In identifying a suitable sentencing tariff for the offence of Act with Intent to Cause Grievous Harm, this Court refers to the case of State v Mokubula [2003] FJHC 164; HAA0052J.2003S (23 December 2003), where analysing the tariff pronounced in several cases referring to the then Penal Code Section that is similar to the now Crimes Act Section dealing with Act with Intent to Cause Grievous Harm,, Justice Shameem stated as below:

“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”
   
8. As a consequence, I start the sentence in this matter with a starting point of 30 months imprisonment, i.e. in the mid-range of the applicable tariff.
   
9. As aggravating factors in this matter, it is evident from the summary of facts that you have pre-planned this attack, where you have identified an unsuspecting moment when PW1 was asleep at home and gone with a weapon that could cause maximum harm, i.e. an iron rod. Further, due to your conduct, PW1 sustained injuries in the form of lacerations to his mandible, right hand, right arm, right heel and the left toe. In view of these aggravating factors, I increase your sentence by fifteen (15) months to reach fourty five (45) months of interim imprisonment.
   
10. In mitigation, the defense counsel has informed Court that you are a first offender and that you have maintained a good character before the involvement in this offence. Further it has been brought to the attention of Court that you have been the sole career for your 5 children and that you play an active role in your local Methodist Church. Still further, your counsel has informed the court that you have entered an early guilty plea and that you regret your action on the day in question. You have also been supportive to the police during investigations after your arrest. By pleading guilty to the charge you have saved court time and resources at a very early stage of the court proceedings. For all these grounds in mitigation, you should receive a considerable discount in the sentence. In this regard, I give you a reduction of one third in your sentence.
    
11. The prosecution brings to the attention of this court that you have been in custody since your arrest on 09/02/2021 to 15/02/2021 (06 days), which period should be deducted from your sentence separately.
    
12. Mr. ILAISA GARIA, I sentence you to 29 months and 24 days imprisonment. Further, with the authority given to this Court by Section 26 of the Sentencing and Penalties Act of 2009, in considering your proactive involvement with your 5 children and your involvement with your local community, your sentence is partially suspended, where you shall serve eleven (11) months and 24 days of your sentence forthwith, and the remaining period of 18 months is suspended for three (03) years.
    
13. If you commit any crime punishable by imprisonment during the above operational period of three (3) years and found guilty by the Court, you are liable to be charged and prosecuted for an offence according to Section 28 of the Sentencing and Penalties Act of 2009.
    
14. You have thirty (30) days to appeal to the Fiji Court of Appeal.
    

...........................................................
Hon. Justice Dr. Thushara Kumarage

At Suva
14 March 2022

cc: Office of the Director of Public Prosecutions
Office of Law Naivalu, Lautoka