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State v Taliga [2010] FJMC 83; Criminal Case 1524 of 2010 (17 September 2010)

IN THE RESIDENT MAGISTRATE'S COURT AT SUVA

Criminal Case Nos: 1524 of 2010

STATE

V

JOSATEKI TALIGA

For Prosecution: Cpl. Lutunauga
Accused: In Person

SENTENCE

1. You, JOSATEKI TALIGA, are here today to be sentenced on plea of guilty on your own accord for the offence of Act with Intend to Cause Grievous Harm contrary to sec. 255 (a) and (b) of the Crimes Decree 2009.
   
2. When these cases were called on 30th August 2010, after waiving your right to counsel you plead guilty to the charge. When questioned by the Court, you informed that you are pleading guilty on your own free will.
   
3. According to the summary of facts (which you have admitted) on 25th August 2010, after consuming alcohol with some youths, you have had confronted your de- facto wife for having affairs out side your relationship. Argument had later become aggressive and you have had hit your partner several times. When she ran out of the house, you have thrown a kitchen knife at her injuring her hand. You then have followed her and victim had used a piece of timber in self-defence. However, you have got hold of that timber and assaulter her again on her head.
   
4. As a result of your assault victim had received one centimetre cut injury to her middle finger and three centimetre long laceration to her right side of the scalp.
   
5. The offence you have been charged carries a maximum penalty of life imprisonment. According to the definition given in sec. 4 of the repealed Penal Code (Cap 21), "Grievous Harm" means any harm which amounts to a maim or dangerous harm, or seriously or permanently injures health or which is likely so to injure health, or which extends to permanent disfigurement, or to any permanent or serious injury to any extent or internal organ, member or sense". Crimes Decree 2009, define "Grievous Harm" as follows:
   

"grievous harm" means any harm which—

(a) amounts to a maim or dangerous harm; or

(b) seriously or permanently injures health or which is likely so to injure health; or

(c) extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, member or sense;

6. According to Abhi Ram v. Reginam [1977] HAA 81/77L 15th August 1977, if an injury to be considered as a grievous injury "it has to be an injury amounts to a main or dangerous harm under this definition. If the bodily hurt is permanent it will no doubt come within the description of "grievous bodily harm". If it is temporary and of short duration and not dangerous, as here, one cannot regard it as more than "non-grievous" bodily harm or hurt".
   
7. Upon perusal of all the medical reports submitted on behalf of the victim I am satisfied that none of the injuries mentioned in the medical reports could be considered as "grievous injuries" according to the above-mentioned definitions.
   
8. Therefore, exercising the powers vested upon me under Sec. 160 (2) of the Criminal Procedure Decree 2009, I convict you for an offence of "Assault Occasioning Actual Bodily Harm" contrary to Sec. 275 of the Crimes Decree 2009 which carries a maximum penalty of five years imprisonment.
   
9. According to Goundar J in State v Nayacalagilagi [2009] FJHC 73; HAC165.2007 (17 March 2009), "The tariff for assault occasioning actual bodily harm ranges from a suspended sentence where there is a degree of provocation and no weapon used, to 9 months imprisonment for the more serious cases of assaults (State v Anjula Devi Criminal Case No.04/98Lab)".
   
10. You are not a first offender and you have 15, previous convictions against your name. So you are not entitled for any discount for your previous good character. Considering all these facts, I set my starting point of sentencing for 09 months imprisonment. To reflect your guilty plea, I reduce 03 months from your sentence.
    

Aggravating facts

11. In commission of this crime, you have used a knife and a piece of timber against the victim and the victim had received injuries from both these weapons. Considering these facts as aggravating facts, I add 06 months to your sentence.
    

Mitigating facts

12. You are married with a child and works as a wheel barrow boy. You informed the Court that you are willing to seek forgiveness from your wife. You are the sole-breadwinner of the family and you asked for a lenient sentence. Considering your mitigation, I reduce 03 months from your sentence.
    
13. Your sentence now stands for 09 months imprisonment. I am mindful to the fact that the sentences which are below 02 years could be suspended.
    
14. I proceed to suspend your imprisonment term for five years subjected to following conditions.
    
    1. You are ordered to stay away from the victim until such time the victim is ready accept you as her de-facto husband. (Victim has to confirm this position by filing an affidavit in the Court).
       
    2. It is ordered that you cannot harass or assault victim at any time either physically or verbally.
       
    3. Any notice of breach of these conditions would amounts to an activation of your suspended sentence forthwith.
       
15. 28 days to appeal.
    

On this Friday the 17th day of September 2010

Kaweendra Nanayakkara
Resident Magistrate