State v Tuitoga [2005] FJHC 88; HAM0016D.2005S (19 April 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Criminal Misc. No: HAM016 of 2005S

STATE

V

SIKELI TUITOGA

Hearing: 15th April 2005
Ruling: 19th April 2005

Counsel: Accused in Person
Mr. D. Toganivalu for State

RULING

The Accused is charged with the offence of act with intent to cause grievous harm, contrary to section 224(a) of the Penal Code. The charge, dated the 29th of March 2005, alleges that the Accused, on the 24th of March 2005 with intent to cause grievous harm, unlawfully wounded one Raghwa Nand with a digging fork.

The case was first called at the Nausori Magistrates’ Court on the 29th of March 2005. The Accused elected trial in the Magistrates’ Court and waived his right to counsel. He then pleaded guilty.

The facts were that on the 24th of March 2005, the Accused and the complainant had an argument about the ownership of a knife. The Accused threw the knife at the victim but it did not hit the victim. He then went to the victim’s house, picked up a digging fork from the porch, hit the victim on the head with it, and then chased the victim whilst holding it. The victim was bleeding from the blow on his head and after running about 3 kilometres, met a friend who applied herbal medicine to the cut. The victim was then taken to Korovou Hospital where he was admitted for 3 days. The medical report states that he had received a 15cm laceration, which was 1.5cm deep, on the scalp. The laceration was stitched.

The Accused admitted these facts. He is a first offender. He is a 58 year old farmer. He said in mitigation that he had been arguing with the victim for some weeks and on this occasion, could not control his temper. He suffers from stroke and blood pressure. He lives in the same house as the complainant.

The learned Magistrate then committed the Accused to the High Court, for sentence under section 222 of the Criminal Procedure Code. He gave no reasons for the decision.

Section 222 of the Code provides that where:

"the magistrate is of the opinion (whether by reason of the nature of the offence, the circumstances surrounding its commission or the previous history of the accused person) that the circumstances of the case are such that greater punishment should be imposed in respect of the offence than the magistrate has power to impose, the magistrate may, by order, transfer the person to the High Court for sentencing under Part VII."

The sentencing powers of the Magistrates’ Courts have been increased to 10 years imprisonment on one count. In State v. Dinesh Chand Crim. App. AAU0027 of 2000S, the Court of Appeal considered appropriate sentences for a charge of act with intent to cause grievous harm. In that case, the accused had wounded the victim with an ice-cream scraper, causing the victim’s intestines to protrude. The injury required surgery. The accused was a first offender, and was married with 3 children. There was an element of provocation. A suspended sentence was imposed by the High Court.

The Court of Appeal said that a case of wounding with a weapon should almost always be "visited with immediate imprisonment." The Court held that a period of 6 to 9 months imprisonment would have been more appropriate.

Other cases indicate a tariff of 6 months to 5 years imprisonment. This range is well within the sentencing powers of the Magistrates’ Court. In the circumstances, I do not consider that there is any reason for the committal to the High Court. Section 222(5) of the Criminal Procedure Code allows me to refer the case back to the Nausori Magistrates’ Court for sentencing. State counsel agrees that this is the best course of action.

I therefore order that this case be referred back to the Nausori Magistrates’ Court for sentencing. The Accused is remanded in custody until the Court can set a hearing date.

Nazhat Shameem

JUDGE

At Suva
19th April 2005