Nalevaleka v The State [2000] FJHC 123; HAA0138j.2000s (21 November 2000)

Fiji Islands - Nalevaleka v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA.138J/00S

BETWEEN:

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VILIAME NALEVALEKA

Appellant

AND:

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THE STATE

Respondent

JUDGMENT

On 11th August 2000 the Appellant was convicted on his own plea of guilty on the following offences.

CHARGE

(COMPLAINT BY PUBLIC OFFICER)

FIRST COUNT

Statement of Offence (b)

DAMAGING PROPERTY:- ContrarSection 324(1) of the Penal Code, Act 17.

Particulars of Offence (b)

VILIAME NALEVALEKA, o June, 2000, at Navua in the Central Division, wilfully and unlawfully damaged the tarpaulipaulin of a vehicle registration $8015 valued at $3000.00, the property of ASAELI VUKEITOGA.

SECOND COUNT

Statement of Offence (c)

ACT WITH INTENT TO CAUSE GRIEVOUS HARM

Particulars of Offence

VILIAME NALEVALEKA, on the 18th day of June, 2000, at Navua in the Central Divi with intent to do some grievous harm, unlawfully wounded Aded ASAELI VUKEITOGA with a bayonet.

He was sentenced on Count One of a stay of proceedings for 12 months, and to 18 months imprent on Count Two.

The facts of the case are brief and, with respect to the cution, obscure. On the 18th of June 2000 at 12 midnight the complainant, a 51 year old vehd vehicle examiner was returning home to his home after drinking with his friends at the Namosi Provincial Office. He saw the Appellant, who is an army officer, damaging the tarpaulin on his van using a bayonet. The complainant asked him to desist whereupon the Appellant stabbed him with the bayonet on the complainant’s shoulder, forehead and hand. The matter was then reported to the police. On medical examination, the complainant said he had been stabbed with a knife and that he had received three stab wounds. He was found to have lacerated wounds on his right shoulder, right forehead. He also had swelling on and fracture of his left thumb. The wounds were consistent with being stabbed with a sharp object.

In mitigation the Appellant said he was thirty five years old, he had four children and had twelve years of service with the Military Forces. He said he had reconciled with the complainant in the traditional way. The prosecution said that it could not confirm the reconciliation.

The Learned Magistrate said that he took into account the guilty plea and the lack of previous ctions but could not give a non-custodial sentence on Count ount 2 because the assault was serious and a weapon had been used.

In his appeal against sentence the Appellant submits that he is a first offender wour children and that he should have received non-custodialodial sentence. He said that the reconciliation between he and the complainant should have been considered, and should have resulted in a non-custodial sentence because it was evidence of remorse. In his submissions he suggests that the complainant had humiliated him in front of the village and that the Appellant had reacted in anger.

The background to this incident is unknown. We do not know whether tmplainant and the Appellant were known to each other, whether they lived in the same villagillage, whether there was a history of ill-feeling, whether the Appellant had been carrying his rifle together with the bayonet, or whether (as the medical report suggests) he was merely using the bayonet as a knife or why the Appellant decided to rip the tarpaulin on the complainant’s van. We know nothing about the background of this case which might assist in the appeal process. The offence of Act with intent to cause Grievous Harm is a serious offence, attracting a maximum sentence of life imprisonment. The prosecution should have outlined facts to assist the Magistrates court in the sentencing process.

p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> On the facts which were outlined, the Learned Magistrate was entitled to come to the conclusion that he did, that:

“therefore this accused has committed this office with a part of this rifle, in a rural, when members of the genergeneral public are still afraid of the arms that are missing. He should try to control his anger, especially when he was armed and the innocent complainant was not. Let it be a lesson to all people who are armed, going around terrorising the members of the community that the court should not tolerate this sort of behaviour.”

Despite the economy of the outline of facts presented to the court, this view taken by the Learned Magistrate arguable as a matter of prif principle. Although the Appellant is a first offender pleaded guilty and expressed remorse, the public interest in passing a deterrent sentence for an offence of violence at a time when the nation was struggling with lawlessness and terrorism was rightly considered to be paramount.

Taking into consideration all the matters raised by the Appellant including the traditional reconciliation, I do not think that the Learned Magistrate erred in principle in taking this view. Furthermore given the maximum sentence of life imprisonment under section 224(a) of the Penal Code the sentence of eighteen months imprisonment is not manifestly excessive.

The sentence of a stay of proceedings on Count 1 is clearly not excessive. It appears that reconciliation was accepted despie absence of the complainanainant.

The appeal against sentence is dismissed.

ass=MsoNormoNormal align=center style="text-align: center; margin-top: 1; margin-bottom: 1"> NAZHAT SHAMEEM

PUISNE JUDGE

At Suva

21 November 2000

Haa0138j.00s