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State v Soro [2016] FJMC 201; Criminal Case 1369.2015 (5 October 2016)

IN THE MAGISTRATE’S COURT of Fiji

AT SUVA

Criminal Case No 1369/15

STATE

-v-

EPELI SORO

SENTENCE

1] The following charge was read out to you and understanding the contents you pleaded guilty to the same on your own free will. Accordingly you are convicted to the following charge.

ACT WITH INTENT TO CAUSE GRIEVOUS HARM: Contrary to Section 255(a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

EPELI SORO on the 2nd day of August 2015 at Suva in the Central Division, Suva with intent to cause grievous harm to VilisiYabaki unlawfully wounded the said VilisiYabaki with a kitchen knife.

2] Summary of facts revealedthat;

1. The victim in this matter isa 27years old Police Officer and the accused in this matter is EpeliSoro of Muanivatu Settlement Road.At the time of the offence, the accused and the victim were in a girlfriend, boyfriend relationship.
2. On 1st August 2015 at about 5pm, the victim came to town to have dinner at the Vineyard Restaurant with her squad members. At about 8pm, after dinner, they went to Birdland night club to have beer. After 20 minutes inside the club, the victim saw that her boyfriend (accused) was also in the club. The accused approached the victim and the victim then asked him as to what he was doing in the club. The accused said that he was there to see the victim. The victim then asked the accused to leave as the party was meant to be just for her squad members but the accused refused to leave and started to drink beer with them. At about 1.30am, the victim asked the accused if they could both leave. The accused and the victim then left out in a taxi to the Rugby Leagues office at Richard Road.
3. As they reached there, the accused asked the victim to wait down stairs while he went upstairs to get the key for the room. The victim waited for about 30 minutes but there was no sign of the accused. The victim looked around for the accused and called his name as well but there was no response. The victim felt scared it was in the early hours of the morning and the place was empty. She then started to look around for the accused again but did not see him. The victim then got into a taxi and went to the girls barrack at Nasova. She then went to her room and slept.
4. Thereafter at about 7am, the victim got shocked when she saw that the accused was sitting beside her bed waking her up. The victim woke up and informed the accused that he is not allowed to be inside her room. She asked him to leave. When the victim asked the accused to leave, he started accusing her of running away from him at Richard Road. The victim tried to explain to him that she was waiting for him downstairs but the accused started punching her. He punched the victim’s head and back. The victim stated to scream. The accused punched the victim again on her left cheek. When the victim tried to open the door, she saw the accused taking out a kitchen knife from the pocket of his pants.
5. He then stabbed her on her left back head, beside her ear and stabbed her twice on her cheek. The accused then threw the victim on top of a table and he stabbed the victim’s chest. The victim tried to stand up but the accused pushed her again and she fell on the floor. The accused then stabbed the victim on her buttocks and kept on swearing at her. He then threw the knife away and walked outside and according to the victim, he was chased away by her friends.
6. The victim was medically examined by Dr.MafaLakega at CWM Hospital on 2nd August 2016. The medical report reveals that the victim had superficial wounds on her face, a 4cm laceration on her left cheek, a 3cm laceration under her chin, a laceration on her neck, 1cm wound deep to muscle on her neck and some small lacerations on her chest.
   

3] The maximum penalty for Act with Intent to Cause Grievous Harm contrary to Section 255(a) of the Crimes Decree 2009 is life imprisonment.

In State v Mokubula [2003] FJHC 164 ; HAA0052J.2003S (23 December 2003)Her Ladyship Justice NazhatShameem said after having analysed the authorities.

“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.”

Her Ladyship added that;

“As a matter of principle, a suspended sentence is not appropriate for a case of act with intent to cause grievous harm not only because it is contrary to the accepted tariff, but also because section 29(3)(a) of the Penal Code contains a legislative fetter to the section 29 powers to impose a suspended sentence for crimes of violence (DPP –v- SavirianoRadovu Crim. App. No. HAA0006 of 1996; State –v- SenitikiNaqa and Others Crim. App. No. HAA0023 of 2003S)"

In State v Drelinavai [2014] FJHC 309; HAC31.2014 (7 May 2014)Hon. Justice Paul Madiganstated ;

“Various cases, but in particular MabaMokubula HAA0052of 2003, have held that the tariff for the offence must be from 2 years to 5 years imprisonment, and more in a domestic violence context.

In the Mokubula case, Shameem J. analysed several cases from the High Court and the Court of Appeal and concluded that in an attack by a weapon, the starting point should range between 2 years and 5 years, depending on the weapon used. She added that a suspended sentence in not appropriate.

Although Shameem J. was considering an appeal of sentence for the identical offence under the Penal Code, the new offence under the Crimes Decree has the same maximum penalty and this Court does now confirm that the tariff is a term of immediate imprisonment from 2 to 5 years, and the nature and danger of the weapon used along with the injuries inflicted will be the determinants of where in that range the starting point is taken.

It is to be remembered that reconciliation in a domestic violence offence is hardly ever genuine and it should be only in extremely special circumstances that this offence when it is domestic violence would attract a suspended sentence. In fact sentences for serious cases of acts with intent in domestic violence can attract sentences well in excess of this tariff laid down here. (see for example EmosiTakuTuigulagula [2011} HAC 81 of 2010(Ltk.)”

InTuigulagula HAC 81 of 2010 the Court passed a sentence of six years on a husband who did very serious harm to his wife. In Nalulu [2013] FJHC 358 HAC 155.2010 (23 July 2013) Justice Madigan stated... “The penalty being life imprisonment, it is to be regarded as a very serious offence indeed and sentences of up to 8 years would not be out of order”.

4] I shall now proceed to consider your sentence to be consistent with the tariff, mitigating factors and aggravating factors.

5] Following State v Mokubula(supra)I pick 3 years imprisonment as the starting point as you have used a kitchen knife. The relationship between you and the victim is recognized as a domestic relationship. You have stabbed several times and prevented the victim from escaping. For these aggravating factors I add 1 year imprisonment to the sentence.

6] You have no previous convictions as reported by the prosecution. For your good character this court decides to grant 10 months discount.You have been in remand from 4/8/15 to 15/9/15 for this case.As a matter of sentencing principle, any period that the offender spends in custody on remand should be taken into account when calculating the sentence, although it is not necessary to make a precise calculation(VideBasa v. The State [2006] FJCA 23; AAU0024.2005 (24 March 2006). Accordingly 2 months deducted from your current sentence. Your sentence now reaches 3 years again.

7] you have pleaded guilty at the first available opportunity, your sentence should be reduced by a third to reach 2 years imprisonment in view of the judgment in VeretarikiVetaukula v The State , High Court Crim App Case No: HAA057/07 which followed Hem Dutt v The State , FCA Crim App Case No: AAU 0066 of 2005.

8] The responsibility to your family can not be considered as a mitigating factor since its common to every accused and especially male accused. Your participation in rugby and religious activities in fact have minimal value when the seriousness of this offence is concerned.

9] Your sentence cannot be suspended on following reasons;

1. I again quote the dictum in State v Mokubula (supra)“As a matter of principle, a suspended sentence is not appropriate for a case of act with intent to cause grievous harm...”
2. There is no provocation on the part of the complainant.
3. Sec 26 of the Sentencing and Penalties Decree 2009 restricts this court.

For the safety of the victim I also grant a permanent domestic violence restraining order with standard non-molestation conditions.

Summary of the sentence; 2 years IMP

Appeal within 30 days with leave to the Court of Appeal

PRIYANTHA LIYANAGE

RESIDENT MAGISTRATE, SUVA

5/10/2016