State v Mokubula [2003] FJHC 164; HAA0052J.2003S (23 December 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0052 OF 2003S

Between:

STATE
Appellant

And:

MABA MOKUBULA
Respondent

Hearing: 5th December 2003
Judgment: 22nd December 2003

Counsel: Mr. N. Lajendra for State
Respondent in Person

JUDGMENT

This is an appeal against sentence by the Director of Public Prosecutions. The Respondent was sentenced to a term of 18 months imprisonment, suspended for 2 years, for the following offences:

FIRST COUNT

Statement of Offence

CRIMINAL TRESPASS: Contrary to Section 197(1) of the Penal Code, Cap. 17.

Particulars of Offence

MABA MOKUBULA, on the 10th day of December, 2002 at Toga, Rewa in the Central Division, entered the dwelling house of UNAISI VAKACEGU with intent to annoy the said UNAISI VAKACEGU.

SECOND COUNT

Statement of Offence

ACT WITH INTENT TO CAUSE GRIEVOUS HARM: Contrary to Section 224 of the Penal Code, Cap. 17.

Particulars of Offence

MABA MOKUBULA, on the 10th day of December, 2002 at Toga, Rewa in the Central Division, with intent to cause grievous harm, unlawfully wounded UNAISI VAKACEGU with a kitchen knife and an electric iron.

She was also fined $300.00 (in default 6 months imprisonment) of which $200.00 was to be paid to the victim.

The Respondent pleaded guilty to both charges on 8th January 2003. She waived her right to counsel. The facts were that on 10th December 2002, the Respondent, entered the victim’s house at Vunimaka Settlement, Toga, Rewa and stabbed her with a knife. The Respondent had gone to the house to ask her why she was having an extra-marital affair with her husband. The two women had a heated argument. The injuries recorded in the medical report are numerous, and include bruises and lacerated wounds to the head, shoulders and arms. The injuries required stitches and the victim was admitted at the Nausori Health Centre for 3 days for tests and treatment. In particular, the victim had a 2 ½ inch cut on the head, lacerated wounds with haematoma, and contusions on the skull with haematoma and concussion on the right deltoid.

The Respondent disputed these facts and the learned Magistrate substituted a plea of not guilty. Disclosure of prosecution evidence was then completed. When the case was called again on the 22nd of April 2003, the Respondent again changed her pleas. The same facts were outlined except that the Respondent was also said to have picked up an electric iron in the house and hit the victim over the head with it. The victim shouted for help and neighbours came to her assistance.

On this occasion the Respondent agreed with the facts and said that she wished to reconcile with the victim. The matter was adjourned to the 24th of April 2003 when the Respondent said that the victim was unwilling to reconcile. In mitigation she said that she was 40 years old and a teacher at the Suva Christian Church. She said that the victim was related to her husband, and that she suspected that the two were having an affair. She tried to talk to her husband about the matter but he refused to discuss it. This led to a falling-out between husband and wife and the victim left their home. The Respondent saw a love bite on her husband’s neck and told the police. The police advised her not to get involved. The Respondent went to see the Church Minister, and went to the victim’s house. The victim was inside holding an electric iron. The Respondent grabbed her neck, hit her with the iron and stabbed her with a kitchen knife that she had brought with her.

She expressed remorse. She was a first offender. Her husband is a taxi-driver.

In his sentencing remarks the learned Magistrate said that the offence was very serious and that the Respondent had shown a complete disregard for the law. She had gone to see the victim carrying a knife which showed that her action was well-planned. He said that the community looks to the courts for protection from such crimes. He started at 3 years imprisonment and reduced that to 18 months because of the mitigating factors. He suspended the sentence because of:

“... her present occupational position, her attempt to rehabilitate herself and the fact that the children she teaches will unnecessarily suffer.”

The sentence was 3 months imprisonment on Count 1, and 18 months on Count 2 suspended for 2 years, with a fine of $300.00.

The State’s grounds of appeal are:

“(a) that the sentence imposed by the learned Magistrate was wrong in principle and contrary to section 29(3)(a) of the Penal Code, Cap 17.

(b) that the aforesaid sentence was manifestly lenient in all the circumstances of the case.”

Submissions

State counsel in his well-researched submissions, said that a suspended sentence was not appropriate for crimes of violence and that section 29(3)(a) of the Penal Code contained a legislative disapproval of suspended sentences of violent crimes, crimes against children, and crimes involving the possession of firearms. Secondly he submitted that a suspended sentence was inconsistent with sentencing practice in respect of the same or similar offences and that it should be set aside and substituted with a custodial sentence. He suggested that a term between 2½ and 3 years would be appropriate in this case.

The Respondent made an emotional plea for leniency. She said that the victim was a close friend who had betrayed her by having a relationship with her husband. She recounted the events leading up to the assault saying that she was angered by the affair, the love-bites, her teasing in the village, her husband’s declaration that he wanted to marry Una and the fact that he asked her for $150 presumably in order to go away with Una. She said that she tried to reconcile with Una but that she did not respond to the overtures.

Sentencing Tariffs and Guidelines

The maximum sentence that a court can impose under section 224 of the Penal Code is life imprisonment. The Court of Appeal in State –v- Dinesh Chand Crim. App. No. AAU0027 of 2000S considered an appeal against a 9 month sentence, suspended for 18 months for an offence of assault with intent to cause grievous harm. The accused had wounded the victim with an ice-cream scraper causing the victim’s intestines to protrude. The accused was a first offender, married with 3 young children. The victim has addressed some insulting remarks to the accused.

The Court held that the trial judge had failed to give any weight to the deterrent factor. It said:

“Wounding another person with a weapon should, almost always, be visited with immediate imprisonment. It does not matter, as apparently was thought significant by the Judge, that the weapon used was a tool of trade of the Respondent’s. A short custodial sentence would have been appropriate as reflecting the mitigating factors in the Respondent’s favour. A period of 6-9 months would have been more appropriate than the suspended sentence imposed.”

The Court did not however impose such a sentence because 4½ years had lapsed between the commission of the offence and trial, that 18 months had lapsed since sentence had been delivered and that the Respondent had already served his suspended sentence.

State counsel referred me to a number of other local cases which support the view that a custodial sentence should be imposed for offences of this nature. In Ram Sami –v- State Crim. App. No. HAA0005 of 1993, a term of 3 years imprisonment had been imposed on a man who struck another twice on the head with a cane knife causing very serious injuries. There had been some provocation in that the victim was sexually harassing the accused’s wife. However the victim’s injuries were permanent and the Court of Appeal held that “A sentence of 3 years for an offence carrying a maximum of life imprisonment, for inflicting a grievous bodily injury with lethal weapon in circumstances which nearly caused the death of the victim, cannot be considered either manifestly excessive or wrong in principle notwithstanding the element of serious provocation.”

In Epeli Delai –v- State Crim. App. No. HAA0022 of 1995, Pain J considered an appeal against a two-year sentence imposed for an offence under section 224. In that case the victim and her aunt were having an argument in the village when the accused interfered and swore at the victim. He then attacked her with a piece of timber and hit her repeatedly all over the body. She ran away and he pursued her, and hit her again until she became unconscious. She received serious injuries including a deep laceration on the head and multiple wounds. His Lordship reduced the sentence to 18 months imprisonment to reflect the mitigating circumstances.

In Mosese Gaunavou –v- State Crim. App. HAA0043 of 1998 the accused was sentenced to 2 years imprisonment for beating his wife with a stone and attempting to strangle her causing multiple bruises. The sentence was reduced to 8 months imprisonment.

In Ramji Lal Sharma Crim. App. No. 55 of 1983 a man struck the victim with a cane knife severing her left forearm. The cause of the dispute was land, and there was some evidence of provocation. The sentences of 4 years and 2 years imprisonment on the two counts of act with intent to cause grievous harm were upheld.

In Rajesh Kumar –v- State Crim. App. No. HAA0032 of 1998L, the Lautoka High Court considered an appeal against a sentence of 3½ years imprisonment for a section 224 offence. The accused had struck his wife with a cane knife because he thought she was having an affair with another man. The attack caused serious injuries leading to hospitalisation. The sentence was upheld, Madraiwiwi J saying:

“Parties in a marital relationship or otherwise need to be discouraged from using any form of violence to satisfy their feelings of hurt.”

In Log Nadan –v- The State Crim. App. No. HAA0044 of 2001L the accused, a first offender, was sentenced to 2 years imprisonment for hitting the victim with a cane knife. There had been a dispute arising out of the accused’s cattle eating the sugar cane in the victim’s farm. The sentence was reduced to 15 months imprisonment.

In Shiu Sami & Shiu Kumar –v- State Crim. App. No. AAU0007 of 1995 the Court of Appeal considered a sentence of 5 years imprisonment for an offence under section 224. The accused, who was a first offender had used a car to knock down the victim, had pre-planned the attack and had caused serious injuries. The Court held that the sentence was not harsh or excessive saying that: “This is not a case in which a suspended sentence would have been justified; only where there were the most exceptional extenuating circumstances would it be appropriate to suspend a sentence of imprisonment imposed for a serious premeditated wounding.”

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. Aggravating factors would be:

1. Seriousness of the injuries;
2. Evidence of premeditation or planning;
3. Length and nature of the attack;
4. Special vulnerability of the victim;
   

Mitigating factors would be:

1. Previous good character;
2. Guilty plea;
3. Provocation by the victim;
4. Apology, reparation or compensation.
   

In general terms, the more serious and permanent the injuries, the higher the sentence should be. 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- Saviriano Radovu Crim. App. No. HAA0006 of 1996; State –v- Senitiki Naqa and Others Crim. App. No. HAA0023 of 2003S).

This appeal

In this case, an appropriate starting point would have been 3 years imprisonment because of the use of two potentially lethal weapons. Aggravating features are the injuries, the evidence that the Respondent planned the attack, the fact that she went into the victim’s house to attack her and the sustained nature of the assault.

Mitigating factors are previous good character, a respected position as a teacher, the fact that the Respondent was angered by her husband’s extra-marital affair with the victim, and the guilty plea. I arrive at a sentence of 12 months imprisonment. I consider that this was not an offence which was committed as a result of a sudden burst of passion. The Respondent knew for some days of the relationship. She had discussed the matter with the police. The police had warned her not to do anything she might later regret. She went to the victim’s house armed with a knife. Whilst assaulting her, she also used an electric iron causing lacerations and bruises. It is not known whether there were permanent injuries but there is no doubt that the victim received serious injuries requiring stitches and hospitalisation.

Clearly, despite receiving warnings, the Respondent decided to solve her personal problems by using violence. The courts have said repeatedly, that such conduct calls for a deterrent sentence. Certainly there are no exceptional circumstances justifying a suspended sentence in this case.

I must however take into account the fact that the Respondent has already served 8 months of her suspended sentence. To reflect that, I further reduce her sentence by 6 months to 6 months imprisonment.

Result

This appeal succeeds. The suspended sentences are set aside and substituted with the following:

Count 1 - 3 months imprisonment;

Count 2 - 6 months imprisonment.

These sentences are to be served concurrently and have immediate effect.

Nazhat Shameem
JUDGE

At Suva
22nd December 2003