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State v Baravilala - Sentence [2022] FJHC 93; HAC010.20 (8 March 2022)

IN THE HIGH COURT OF FIJI

AT SUVA

[CRIMINAL JURISDICTION]

CRIMINAL CASE NO. HAC 010 OF 2020

STATE

V

YAVALA BARAVILALA

Counsel: Ms W Elo for the State

Accused in person

Date of Hearing: 15 February – 17 February 2022
Date of Judgment: 25 February 2022
Date of Sentence: 8 March 2022

SENTENCE

[1] The Accused was charged with attempted murder and resisting arrest. After trial, he was convicted of the lesser offence of causing grievous harm contrary to section 258 of the Crimes Act and resisting arrest contrary to section 277 (b) of the Crimes Act.

[2] The facts are that the victim and the Accused were in an intimate partner relationship for about a year. She lived with him in his flat at Sukanaivalu Road, Nabua. A week before the incident she had moved back to her mother’s home in Makoi after a dispute with the Accused.

[3] The incident occurred on 5 January 2020. On this day the Accused persuaded the victim to accompany him to his flat in Nabua after a meeting at a supermarket in Makoi. When she arrived in his flat he confronted her about an affair with another man. When she denied the affair he punched and kicked her. He bit both her ears. Her left earlobe was severed. She lost consciousness and bled profusely.

[4] The Accused then took a timber plank and hit her until the plank broke. The neighbours attended to her distress call and intervened. He stopped the assault. When the police attended to the scene, he shoved them during arrest and the officers had to use pepper spray to subdue him.

[5] The Accused offered to plead guilty to causing grievous harm to the victim before the commencement of trial, but that plea was not accepted by the prosecution. The offer of plea to a lesser charge, which he was found guilty of after trial, indicates the Accused’s willingness to take some responsibility for his crime.

[6] At the time of the offence the Accused was 31 years old. He is now 33 years old and unemployed. The Accused was raised by his mother after his father passed away in 2007 when he was in high school. He has two other siblings. He completed Form 6 (Year 12) and studied IT at FNU. He did not complete his certificate due to financial constraints.

[7] The Accused has seventeen previous convictions. However, the convictions are for summary offences. They are not for violent offences.

[8] The maximum penalty for causing grievous harm is 15 years imprisonment. There is no established tariff for this offence. It would be wrong in principle to use the tariff for the offence of act with intent to cause grievous harm as a guide because that offence is punishable by life imprisonment.

[9] Under the Penal Code, the maximum penalty prescribed for causing grievous harm was 7 years imprisonment. Under the Crimes Act, the penalty has been increased to 15 years imprisonment. The increased penalty reflects the intention of the Parliament to treat the offence seriously.

[10] The maximum penalty for resisting arrest is 5 years imprisonment. Sentences range from 6-9 months imprisonment (State v Batiratu [2012] 864; HAR001.2012 (132 (13 February 2012)).

[11] The aggravating features of this case are that the Accused inflictgnifibodily injuries to the victim. He used a timber plank as a weapon. The violence wnce was fuas fueled by alcohol. She was hospitalized for about two weeks. She sustained a broken jaw and arm. She underwent multiple surgeries to fix her injuries, leaving visible scars to her body. Her left earlobe is missing. She puts a scarf around her head to cover up the injuries to her ears. She feels embarrassed. Her trust was breached.

[12] It is the court’s duty to denounce family violence and send a clear and strong message that violence resulting in serious injuries to a partner or spouse will be severely punished. The impact of family violence is enormous. It destroys relationship and causes significant physiological harm to the victims. The perpetrators of family violence are mostly males and the victims are females. In such cases the male partner is not willing to accept the woman’s choice to make her own decisions. Usually the use of violence is justified on thin grounds of provocation.

[13] In State v Kailoma [2018] FJHC 763; HAC46.207 & HAC63.2017 (21 August 2018) this Court said:

The courts will never condone family violence. Family violence must be denounche primary pary purpose of sentence is deterrence, both special and general. Custodial sentence is inevitable in cases where a weapon is used to inflict physicauries to the victim.

[14] For the offence of caof causing grievous harm I pick 2 years as my starting point. I add 3 years for the aggravating factors and deduct 1 year for the mitigating factors.

[15] The force used in resisting arrest was minimum. When the Accused shoved the police officers they pepper sprayed him and immediately subdued him. His criminality for the offence falls on the lower end of the tariff.

[16] On count one, the Accused is sentenced to 4 years’ imprisonment. On count two, the Accused is sentenced to 3 months imprisonment, to be served concurrently with 4 years’ imprisonment. The total effective sentence is 4 years imprisonment.

[17] The Accused has already served 2 years and 2 months in custody on remand in this case. The remaining term for him to serve is 1 year and 10 months. Since the Accused had already served a significant portion of his sentence, I decline to fix a non-parole period.

[18] A permanent DVRO with standard no contact and non-molestation conditions is issued against the Accused for the protection of the victim.

. ...........................................

Hon. Mr Justice Daniel Goundar

Solicitors:
Office of the Director of Public Prosecutions for the State
Accused in Person