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State v Koroi [2013] FJMC 95; Criminal Case 537.2011 (25 February 2013)

IN THE MAGISTRATES COURT AT NASINU

Criminal Case No. 537/2011

STATE

-v-

SOLOMONE KOROI
JONE BOSE

PC Ravi Narayan for the prosecution
Both accused were absent and unrepresented

JUDGMENT & SENTENCE

1] On 22-02-2012, both accused appeared and Mr. Tirath Sharma appeared. By agreement of both parties, the hearing was fixed on 20th November 2012. On hearing date, both accused were not absent nor did Mr. Sharma appear for them. On the Application of the prosecution, as they were ready to proceed with the hearing, hearing was done under section 171(1) (a). This trial in absentia procedure was laid in Criminal Case No. HAC 37(A) of 2010, FIJI INDEPENDENT COMMISSION AGAINST CORRUPTION vs FIONA TUKANA NEMANI by Justice Priyantha Fernando and Criminal Appeal No: HAA23 of 2012, PENIAME DROVA vs STATE by Justice Paul K. Madigan.

2] The accused were charged on following offence, namely;

CHARGE:

Statement of Offence [a]

ASSAULT OCCASIONING ACTUAL BODILY HARM: Contrary to Section 275 of the Crimes Decree No. 44 of 2009.

Particulars of Offence [b]

SOLOMONE KOROI and JONE BOSE on the 29th day of April 2011 at Nasinu in the Central Division assaulted Joji Rokosugu thereby occasioning him actual bodily harm.

3] At the hearing prosecution called virtual complainant, Joji Rokosugu first. He said on 29th April 2011 at 2pm he was having function at his place. This was funeral arrangement for his sister. He was in charge of the funeral arrangement and they wanted to put up a shed outside. Then, 20 odd people come and confronted him. They were swearing and him. When one lady was holding the victim the two accused assaulted him. They were attacking in front and he managed to go to main road. It was sister’s place then he ran to main road. He said that “When I come to the road, they followed me with the crowd. They challenged me, I have no option, and they hit me. I fell down onto the ground Jone bose hit me on my face...Koroi was running around and said “Today is your de day” ... they threw more than five punches...” The witness tendered his medical as EX-1. The witness said Jone is his sister’s son and Solomone is his son, but they have not reconciled.

4] After the victim, the prosecution called DC 3454 Bela as a witness. He was the investing officer. He tendered Koroi caution interview and charge statement as Ex-2 and Bose’s caution interview and charge statement as Ex-3.

5] Then, the prosecution closed the case.

The Law

6] The Section 275 of the Crimes Decree provides that;

“275. A person commits a summary offence if he or she commits an assault occasioning actual bodily harm.

Penalty — Imprisonment for 5 years...”

7] Elements of the charge of assault occasioning actual bodily harm are (1) assault (2) occasioning actual bodily harm.

8] State v Tugalala [2008] FJHC 387; HAC0025.2008 (28 April 2008) her ladyship Nazhat Shameem observed “Section 245 of the Penal Code creates the offence of assault occasioning actual bodily harm. I consider that it is a lesser offence in relation to section 224 of the Penal Code. It has two elements, one is committing an assault, and the second is occasioning actual bodily harm."
Burden of proof

9] In Woolmington v DPP (1935) AC 462 held that 'no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the accused, is part of the common law". Therefore the burden of proof of the accused person's guilt beyond reasonable doubts lies with the prosecution. If the evidence creates any doubt, should be given to the accused.

Analysis

10] This is a straight forward case that the victim says that he was assaulted by both accused. The Koroi said that today is de day for the victim and that shows common intention to cause injuries to the accused. The Ex-1, medical shows following injuries;

"Cut on the inner lower lip

Cut on the left hand-about 3cm diameter

Cut on the big toe of right leg (lateral aspect)

Area of tenderness and swelling over the left side of neck and shoulders

Swelling on the corner of left eye"

11] The doctor observed the impression of the victim as "patient was mentally disturbed in a shock state".

12] The victim had given the history to the doctor and he noted it as follows; "patient was assaulted by two men namely Solomoni Tuicakau and Jone senikau at residence in Tuirara. He was punched and verbally abused". The victim clearly states that he was punched and verbally abused to the doctor after few hours of the incident. This proves victim's version.

13] Further in Ex-2, the caution in interview of the first accused he was questioned and he said that;

"Q: In his statement, he stated that you and another Fijian boy namely Jone assaulted him on 29-04-2011? No, we were just pushing him around"

14] In Ex-3 the second accused denied the allegation. But the medical report proves how they have pushed the victim and as a result the victim got considerable injuries. Though I cannot consider evidence against the co accused (against second accused), he admitted that they pushed the victim. Having considered the medical and the evidence, I can only reach a conclusion that both accused lied to the police and evade the court proceedings.

15] I am satisfied that the prosecution discharged its burden beyond reasonable doubt. I convict both accused as charged.

SENTENCE

16] Both evaded the court. The trial concluded on 20th November it is almost the accused or their counsel on record did not approach police or court inquiring what happened to their case. It seems that they deliberately evading the proceedings. The court cannot wait for the accused. This is sheer ignorance or disrespect of court proceedings. I therefore pass the sentence now itself.

17] I now consider tariff. It was held in State v Tugalala [[2008] FJHC 78; HAC025S.2008S (29 April 2008), the tariff for this offence appears to range from an absolute or conditional discharge to 12 months imprisonment. As cited in earlier case, in Elizabeth Joseph v. The State [2004] HAA 030/04S and State v. Tevita Alafi ] HAA073/04S, that it is this the extent of the injury which determines sentence. The use of a pen knife for instance, justifies a higher starting point. Where there has been a deliberate assault, causing hospitalization and with no reconciliation, a discharge is not appropriate. In domestic violence cases, sentences of 18 months imprisonment have been upheld (in Amasai Korovata v. The State [2006] HAA 115/06S.

18] The victim was assaulted by his son and nephew at funeral place. He was humiliated in public and he received considerable injuries. No apology or no reconciliation was done. I see these as aggravating factors. There was nothing in mitigation. Thus, both accused are sentenced to 6 months imprisonment. In CRIMINAL CASE NO: HAC 098 OF 2009S THE FIJI INDEPENDENT COMMISSION AGAINST CORRUPTION[FICAC] vs ASHWIN KUMAR JOGIA and PENISENIASI TAGIKIMATUKU, His Lordship Justice Temo indicated if court's resources were used custodial sentence is inevitable.

19] There are no strong compelling reasons to suspend this sentence The 6 months imprisonment is to be started after the apprehension of the accused.

20] 28 days to appeal from today. If the accused was arrested after the 28 days, there is no appeal right since 28 days have been lapsed.

On 25th February 2013, at Nasinu, Fiji Islands

Sumudu Premachandra [Mr.]
Resident Magistrate