State v Salua [2005] FJHC 481; HAC0006T.2005S (13 October 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case HAC006.2005S

STATE

V

PANAPASA SULUA

Fiji High Court, Suva
12th, 13th October 2005
Gates J

Sentence: Assault with intent to rob section 293(3) Penal Code; felony maximum sentence 10 years imprisonment; punching assault, several blows; 47 year female victim fell to pavement, had been on early morning jog; very serious injuries to face; two operations; significant pain, long rehabilitation; permanent disabling damage likely; victim in vulnerable category; frank admissions and early plea by 20 year old Accused; one previous conviction unrelated; offence committed shortly after release from prison; some remorse shown; naïve crime without premeditation; parents largely disowned him; tariff 4-6 years; exceptional cases more; need for protection of freedom of movement for all Fiji’s inhabitants; extra protection of persons walking at night time.

Mr V. Kurisaqila and Ms Paumau for the State
Dr J. Cameron for the Accused

[1] At the outset the Accused faced an information with a single count of robbery with violence. He pleaded not guilty but guilty to assault with intent to rob contrary to section 293(3) of the Penal Code, an alternative to the count charged, by virtue of section 183 of the Criminal Procedure Code. After time was allowed for reconsideration, the State through its counsel Mr Kurisaqila, accepted this plea. This obviated the need for a trial. An amended information was filed today and the Accused was re-arraigned, pleading guilty to the charge of assault with intent to rob.

[2] Assault with intent to rob now attracts a maximum term of imprisonment of 10 years as against life, for robbery with violence.

The facts

[3] The complainant, Jennifer Rawson, was a 47 year old woman. On 8^th January 2005 at 5 am she was on her early morning jog up Princes Road, Tamavua. She ran up the hill towards the Kundan Singh Supermarket on the right hand side of the road. The Accused ran up alongside and said “Good Morning”. The complainant responded. Moments later the Accused ran up alongside her again, grabbed her shoulder, turned her around and punched her on the face. He then repeatedly punched her on the face causing her to fall onto the pavement.

[4] The complainant managed to get back on her feet. The Accused attacked her again. He punched her for the second time. A taxi approached coming down the hill, at which the Accused ran off. The taxi driver came to the complainant’s rescue, the complainant being then seated on the footpath with very serious facial injuries. She was bleeding profusely with blood all over her clothes and the pavement.

[5] The victim was taken to the Suva Private Hospital and later evacuated by air ambulance to a hospital in Sydney.

[6] Following information received, the Accused was located and interviewed. He admitted the offence. He said that in the early hours of that morning he had been drinking grog with some friends and had smoked a roll of marijuana. He then took a walk along Princes Road at about 5 am.

[7] The Accused admitted that when he saw the complainant he decided to steal from her. He co-operated with the police in showing where the crime was committed and the path he had taken to escape. He had wanted to steal some money, in Dr Cameron’s words, “to buy alcohol, drugs, or both.”

Aggravating factors

[8] As Dr Cameron rightly concedes substantial injuries were caused to the victim by the Accused’s crime. The photographs depict that the victim was left in a sorry state indeed. The reports of Dr Michael Klaasen, a plastic and reconstructive surgeon, of St George’s Hospital, Sydney and that of Dr Tim Smart of the Suva Private Hospital make clear that the victim had to undergo a painful recovery process involving at least two operations and various procedures.

[9] The multiple injuries need to be listed. They were:

1. Complex comminuted fractures to mandible;
2. Dislocation of jaw;
3. Left periorbital eye contusion;
4. Three-centimetre laceration above left eye;
5. Three-centimetre oblique laceration of chin;
6. Compromised airway from internal swelling in the mouth and throat;
7. Bruising right little and ring fingers and right elbow;
8. Loose 43^rd tooth in fracture line;
9. Active bleeding from mucosal lacerations.
   

[10] Dr Cameron accepted that the victim has suffered “serious disabling injuries to the face from which she may not fully recover.” Dr Smart referred to the many weeks of physiotherapy and rehabilitation. He anticipated permanent complications relating to reduced jaw movement, osteoarthritis, and the associated pain and disability she would face in the future. The full psychological impact of the attack and the injuries sustained is yet to be assessed.

[11] The victim, in a victim impact statement, has listed several of the difficulties she now faces in carrying out her working duties. I need not list them here, but they are significant. Pain persists and further surgical intervention is likely in the future. The assault and the consequences of the assault therefore place this offence at the top of the tariff in sentencing terms.

[12] Next I treat the victim as being in a vulnerable category by reason of her small build and frame. The less a victim is capable of throwing off an assailant the more the courts will treat that victim as being in a vulnerable category requiring the protection of the courts.

[13] The Accused is not a first offender. But he has only one previous conviction, a conviction for housebreaking in 2004. He was released from prison shortly before Christmas, after serving a term of 3 months imprisonment, only a few weeks before he committed this offence. Nothing was learnt from that punishment.

Mitigating factors

[14] I accept that the Accused’s plea is to be treated as an early plea of guilty. The Accused pleaded guilty to the present charge at the second magistrates’ court appearance on 25^th January 2005. He is to receive a discount in sentence because of this plea, a plea which also spares Ms Rawson the ordeal of having to re-live her dreadful experience if she had given evidence in court.

[15] It is noteworthy that he told the police the next day when interviewed exactly what he had done. He frankly admitted his part. I also accept that he has shown remorse, and prior to counsel’s intervention had written a letter of apology to Ms Rawson.

[16] The Accused says he did not intend to cause the injuries actually caused to the victim. I accept that. There were two assaults consisting of several punches to the face of a non-robust victim. His lack of viciousness does not alleviate the horror caused to the victim. But what he says is some mitigation and I note it.

[17] He is only 20 years old. Normally youth is a factor influencing the courts from imposing lengthy custodial sentences. But in “mugging” cases the Court of Appeal has directed that even young persons should be given “long custodial sentences” R v Edwards; R v Larter (1987) TLR 3^rd February CA.

[18] Dr Cameron also referred to the fact that the Accused was on his own, not accompanied by others or a gang, and that this was a naïve crime committed without premeditation.

[19] There is no doubt from what Dr Cameron has carefully described in a model mitigation address for his client, that the upbringing of the Accused has been unfortunate. Both parents have gone their separate ways and largely forgotten him. He is now a loner without a pivotal and loving home. There is indeed a danger that his only community will be the friends he makes in prison.

The cases

[20] It is said by Dr Cameron the top end of the tariff is 5-6 years, not the 7 years suggested by Mr Kurisaqila for the State. There is of course little difference in the cases. It matters not whether any property is stolen, very little property is stolen, or a large amount of property is snatched from a pedestrian. In R v Edwards (supra) the Court of Appeal said:

“The amount involved in this case was beside the point. It could have been hundreds or thousands of pounds, or it could have been pennies. The sentence was properly the same.”

In Edwards and Larter the Accused were both aged 22, and the female victim was 48. The Accused were each sentenced to 5 years imprisonment.

[21] The gravity lies in the forceful or violent assault upon a member of the public who is impeded from, or thereby frightened from, walking freely along any of Fiji’s paths or roads. Nobody wants to live in a land where people are frightened to walk around whenever they chose; whether it is to walk to the cinema or restaurant, shop or sports stadium or whether it is to jog on one’s own in the dark, in the morning. At all times Fiji’s inhabitants should be quite safe and should feel safe. Such freedom of movement therefore will be protected by the courts.

[22] Though it appears that it was already light at 5 am that morning I shall treat that time of day as akin to night time, as if it were dark. Day time movement is important also, but night time, whether dusk or dark, early morning or half light, are times requiring the extra vigilance and protection of the courts for persons walking on our thoroughfares.

[23] In O’Brien (1984) 6 Cr. App. R. (S) 274 Lord Lane CJ had this to say when sentencing a 20 year old youth:

“It must be made perfectly plain, particularly to youths of this age, who seem to be the class which commits this sort of offence, that elderly ladies who are going about their lawful business in the streets of Liverpool or any other city, will be protected so far as they can by the courts from this sort of monstrous behaviour. Not only must this young man realise what he has done is highly reprehensible, but other young men in Liverpool and other cities must realise that if they do behave in this sort of manner, they will go to prison or youth custody for five years or thereabouts.”

[24] A vulnerable victim, as I have categorized Ms Rawson, by reason of her build and frame, is in no less a need of protection from the courts than the elderly victims of the cases cited.

Conclusion

[25] Because of the non-robust nature of the victim, a vulnerable victim, and because the case is one to be treated as having occurred within night hours, I start above the tariff at 7 years imprisonment.

[26] I reduce this figure by 2 years for the guilty plea and by a further year for the time spent in custody so far. This brings the sentence to one of 4 years imprisonment. It should be made clear to all young persons who might consider assaulting a vulnerable member of the public on the thoroughfares, the streets and paths of Fiji, in order to steal something from them, that such a step will earn each offender a long stay in prison, that is somewhere in the region of from 5 to 7 years.

[27] The sentence of the court therefore is that you serve a term of 4 years imprisonment.

A.H.C.T. GATES
JUDGE

Solicitors for the State : Office of the Director of Public Prosecutions, Suva
Solicitors for the Accused: Legal Aid Commission, Suva