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State v Udre [2016] FJMC 177; Criminal Case 128.2016 (23 September 2016)

IN THE FIRST CLASS MAGISTRATES COURT AT SIGATOKA

IN THE WESTERN DIVISION

Criminal Case No: 128 of 2016

STATE vs SERUPEPELI UDRE

Details

BEFORE : Resident Magistrate, TomasiBainivalu

For Prosecution : WPC 3348 ElinaLotudina

For Accused : In person

Date of Sentence : 23^rd September, 2016

S E N T E N C E

1. The accused,SerupepeliUdre appears this morning for sentencing after pleading guilty to one count ofGrievous Harmcontrary to section 258 of the Crimes Decree, and after accepting the truth of the prosecution’s summary of facts. I find him guilty and convict him as charged. The accused also elected Magistrates court trial on the 19/09/16 after being explained to him in the iTaukei language.
   
2. The facts are as follows:-

“On the 24^th day of December, 2015 at about 0745 hours, one SerupepliUdre (Acc), 19 years, farmer of Tagaqe village for assaulting one EpeliSenitiri, 39 years, (PW-1) farmer also of Tagaqevillage.On the above date, time and place (PW-1) was filing water from the village tank in the middle of the village when he was approached by (Acc) who questioned him as to why (PW-1) had called the police. Argument arose between them, whereby the (Acc) then fisted (PW-1) causing him injuries to his mouth. (B-1) was drunk at the time of incident.Matter was reported at Korolevu Community Post, (Acc) was later arrested, caution interviewed and charged for the offence of Assault Causing Actual Bodily Harm contrary to section 275 of Crimes Decree No. 44 of 2009”

I have noted that prosecution failed to amend the summary of facts as it stated that accused was charge for ACABH, however I chose to go by the official charge of Grievous Harm.

3. The maximum penalty for this offence is 15 years imprisonment. There is no stated tariff for this offence but I take a cue from the tariff for the more serious offence of act with intent to cause grievous harm, where the maximum penalty is life imprisonment and for which the tariff is between 5 months and 5 years imprisonment (State v Mokubula [2003] FJHC 164; HAA0052J.2003S (23 December 2003)) Where a weapon is used, the starting point should range from 2 years imprisonment to 5 years imprisonment, depending on the nature of the weapon.
   
4. I consider that the difference between the two offences is the element of intent to cause grievous harm, and find that a much lower starting point could be justified in sentences for grievous harm.
   
5. The Mitigating factors are:
   1. Guilty plea
   2. Previous good character
   100. Cooperation with the Police
   4. Remorseful
   5. Reconciliation

And the mitigation submissions accused told the court as follows:-

20 years old of Tagaqe village;

Unemployed, single;

Seek forgiveness and apologise for the wrong decision;

Victim is my cousin and have reconciled;

Helping father in farm.

C/offending:- Sir I was fighting with my friends and when I went back, mistakenly thought the victim,Epeli was one of them, and I am sorry.

Victim – I have forgiven the Accused and not forced to accept forgiveness

6. I find that the injury sustained by the victim aggravates the offending; i.evictim sustained left undisplacedparasymphysn fracture of mandible.
   
7. For your offending, I take sixteen (16) months as my starting point. I add six (6) months as aggravating factors. For your early guilty plea, I deduct six (6)months, and for the mitigating factors including first offender, I deduct six (6) months, and now leaving a balance of Ten (10) months imprisonment.
   
8. I consider whether to suspend your sentence. You are a first time offender who has pleaded guilty at the earliest opportunity, thus had saved the court and prosecution time and expenses. Your assault was unprovoked and unnecessary. You punched the victim as a result he sustained injuries as per medical report tendered in court by prosecution.
   
9. I give priority to the principles of rehabilitation considering the accused being a young and first offender and had shown great remorse in court and also reconciled with victim, even though it not a reconcilable offence.
   
10. Having stated thus, I have chosen to consider the following principles via case authorities:-
    • In Prasad v The State [1994] FJHC 132; Haa0032j.94s (30 September19994) S W Kepa J enunciated that the fact that Appellants are first offenders ought to be a verong mitigaitigating factor in their favour. A prison sentence ought to be the last resort after the court has explored and exhausted all other alternative sentences.(emphasize is min>
    InPrasad v State [1994] FJCA 19; Aau0023u.93s (24 May 1994),Fiji Court of Appeal held that ".... Courts ought to bend backwards to avoid immediate custodial sentence for first offenders." (underlined emphasize is mine)
    • It has been noted in [1994] FJHC 132 (Supra)that criminologists recognise that a prison sentence should be the last resort especially where a first offender is concerned s the charge irge is very serious or the offender is dangerous and imprisonment is called for in the public interest or in the interest of the offender himself. (underlinedemph mine.
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11. In pursuant to section 26 of the Sentencing and Penalties Decree 2009, any sentence less than 2 years I have powers to partly or wholly suspend; and also considered section 4(1)(2)) of the Sentencing and Penalties Decree 2009.
    
12. I find that there exist circumstances justifying the suspension of sentence. The offender namelySerupepeliUdre,will therefore serve TEN [10] months imprisonment, and to be suspended for THREE [3] years.Further order that accused to pay the sum of $150.00 as compensation and this to be paid in a months’ time in default 2 weeks imprisonment. The said compensation shall be paid to the victim namelyEpeliSenitiri.
    

Review date of the payment of compensation on the 24^th October, 2016.