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State v Vakaoqotabua [2016] FJMC 50; Criminal Case 155.2015 (22 April 2016)

IN THE MAGISTRATES’ COURT OF FIJI
AT TAVEUNI

Criminal Case No: - 155/2015
(HAC 46/2015)

STATE

V

MARIA TERESIA VAKAOQOTABUA

For the Prosecution : Ms.AmeliaVavadakua (ODPP)
For the Accused : Mr.Tuicolo (LAC)

Date of Sentence : 22nd of April 2016

SENTENCE

1. MARIA TERESIA VAKAOQOTABUA, you were charged with one count of Act with Intend to cause Grievous Harm contrary to section 255(a) of the Crimes Decree No 44 of 2009.
2. The High Court gave the extended jurisdiction to hear this case to this Court and you pleaded guilty on 19/04/2016. Admitted summary of facts shows around 2am in the morning you suddenly stabbed the victim in her legs with a pair of scissors. The victim was medically examined and you were charged for this offence.
   
3. I am satisfied about your plea and convict you for this offence.
   

The Law and the Tariff

4. The maximum sentence for Act with Intent to Cause Grievous Injuries is life imprisonment.
   
5. InState v Drelinavai [2014] FJHC 309 his Lordship Justice Madigan said :
   

“The maximum penalty for this offence is life imprisonment. Various cases, but in particular Maba Mokubula 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."

6. In Koroivuki v. State [2013] FJCA 15; AAU 0018.2010 (5 March 2013) his Lordship Justice Suresh Chandra said:
   

"In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this stage. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff. If the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range."

7. Considering the gravity of offending I select 02 years as the starting point for your sentence.
   

Aggravating Factors

8. The following are considered as aggravating factors:
   
   1. The accused used a pair of scissors for the assault ;
      
   2. This was committed early in the morning when it was dark which must have been really terrifying for the victim;
      
   100. The victim was related to the accused.
        
9. For these aggravating factors I add 02 years to reach 04 years imprisonment.
   

Mitigating Factors

10. The learned counsel from the legal aid in his oral mitigation submitted the following:
    
    1. Married with children;
       
    2. Remorseful of her behavior;
       
    100. Unemployed.
         
11. For these personal mitigating factors I deduct 01 year to reach 03 years imprisonment. You have a conviction in 2011 for Theft and therefore not entitled for discounts for your past behavior.
    

Early Guilty Plea

12. In Naikelekevesi v The State Criminal Appeal No AAU 0061 of 2007 it was observed:
    

"...where there is a guilty plea,this should be discounted for separately from the mitigating factors in a case".

13. In UK Guilty Plea guidelines of 2007 it has been held that when an accused pleaded guilty at the first available opportunity the reduction is 1/3 and after a trial date is set 1/4 recommended. But when an accused pleaded guilty at the door of the court or after the trial has started he maybe entitle for only 1/10 discount.
    
14. In Fiji this has been discussed comprehensively by his Lordship Justice Madigan in Posate Rainima v The State, Criminal Appeal No AAU 0022 of 2012 where the Lordship said:
    

"[45] Although the judge passing sentence below took all matters complained of into consideration when assessing an appropriate "global" sentence, it is better sentencing practice to specify terms of discount when allowing for such matters as pleas of guilty, time on remand and clear record for example. The convict and the reader can then see easily the various components of a sentence and sentence appeals could be prevented.

[46] Discount for a plea of guilty should be the last component of a sentence after additions and deductions are made for aggravating and mitigating circumstances respectively. It has always been accepted (though not by authorative judgment) that the "high water mark" of discount is one third for a plea willingly made at the earliest opportunity. This Court now adopts that principle to be valid and to be applied in all future proceedings at first instance.

[47] Pleas of guilty made at later stages than earliest opportunity cause more difficulties in the assessment of how much discount should be afforded to them. It is not for this Court to suggest an appropriate sliding scale because it must remain a matter of judicial discretion. We would however make three points very clear in this regard:

(i) A plea of guilty before trial must be afforded some discount given that the cost of trial (including time and cost of assessors) is saved.

(ii) A plea of guilty at a later stage before a trial involving a vulnerable witness must be given a meaningful discount (say 20-25%) to recognize the fact that the vulnerable witness is not put through the ordeal of giving evidence.

(iii) A plea during trial after an accused has heard unshakeable evidence of a victim/complainant or after an inculpatory caution interview has been admitted into evidence is not deserving of any discount whatsoever."

15. In this case I consider your guilty plea after getting the proper legal aid as one made at the earliest opportunity and deduct 1/3 to reach 02 years imprisonment.
    
16. Now I have to consider whether to suspend your sentence.
    
17. You pleaded guilty at the earliest opportunity and saved the time and resources of the Court. Also you got small children and a custodial sentence would badly affect them. Even though not much relevant the counsel informed that you have reconciled with the victim. Therefore I suspend this 02 years imprisonment to 03 years allowing you the chance to reform whilst staying with your children.
    
18. If you commit any offences during next 03 years you can be charged under section 28 of the Sentencing and Penalties Decree.
    
19. Since this court is exercising the extended jurisdiction of the High Court case, the parties may appeal against this sentence within 30 days with leave to the Court of Appeal.
    

Shageeth Somaratne
Resident Magistrate