State v Moceimereke [2002] FJHC 313; HAC006.2001S (27 September 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 006 OF 2001S

STATE

V

JOVILI MOCEIMEREKE

Mr W. Kuruisaqila for State
Mr S. Valenitabua for Accused

SENTENCE

Jovili Moceimereke, you have pleaded guilty to one count of Assault Occasioning Actual Bodily Harm, contrary to section 245 of the Penal Code. The Information is that on the 4th day of January 2001 you assaulted Rusiate Kotobalavu at Nasinu, and caused him actual bodily harm.

The facts outlined by the prosecution, which you have agreed to are that you with seven others were drinking in Cunningham when the victim Rusiate and three others approached your group about an earlier incident in which Rusiate’s brother had been robbed. A fight then broke out and during the fight you punched Rusiate once, then kicked him as he lay on the ground. The victim received a number of injuries during the brawl, and I accept that your one punch and kick could not have caused all those injuries. However, you accept that the injury to the mouth may have been caused by your kick, thus your plea of guilty in this court. I accept that the punch you administered was in self-defence, and that your kick as the victim lay on the ground was an act not of self-defence, but of retaliation.

The maximum sentence for this offence is 5 years imprisonment. I have considered counsel’s mitigation on your behalf, particularly your previous good character, the fact that Rusiate approached your group first, and that you have already spent 1 year and 3 months in custody. Sentences for similar offences have ranged from suspended sentences, when the violence was minimal, and the provocation great, to 3 years imprisonment where the violence was grave, and the victim was vulnerable.

Your co-accused, Maciu Koroi was on the 21st of March 2002, sentenced to 2 years imprisonment. However, an aggravating feature of that assault (occasioning actual bodily harm) was that he had continued the assault after Rusiate had been rendered unconscious and efforts were being made to revive him. Further he had served 10 months in remand pending trial, and had a previous conviction of assault on Rusiate’s brother.

In the circumstances I would choose a much lower starting point of 2 years imprisonment. After giving you credit for your guilty plea on reduction of the charge, the time spent in custody, the aggression of the victim and the single kick which was the assault, and taking into account the aggravating features of this case which were that you kicked a man when he was down, and that you were a member of a group assault, I arrive at a sentence of 6 months imprisonment.

You have already spent a period in remand in excess of that term. Further you are a first offender with no history of violence. For that reason I suspend your sentence for a period of 1 year.

You are therefore sentenced to 6 months imprisonment suspended for 1 year to run from today.

Nazhat Shameem
JUDGE

At Suva
27th September 2002