State v Yavala [2010] FJHC 169; HAC086.2010 (21 May 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC 086 of 2010

STATE

V

JOSUA YAVALA; and APOLOSI TUALOU

Hearing: 19th May 2010
Sentence: 21st May 2010

Counsel: Mr. F. Lacanivalu for State
Both Accused in person

SENTENCE

Guilty Pleas

[1] The 1st accused has pleaded guilty to one count each of assault causing actual bodily harm and theft.

[2] The 2nd accused has pleaded guilty to one count of assault causing actual bodily harm. He was not charged with theft. The offences arose from one transaction and related to the same complainant.

Conviction Recorded

[3] I accept their guilty pleas were freely and voluntarily made. I convict them accordingly.

Facts

[4] The facts are that the offenders and the complainant are friends. They are from Tailevu. On the night of 18 April 2010, they were drinking together at Tailevu Hotel. The complainant promised the offenders that he would arrange a transport for them to return home provided they bought beer for him. The offenders bought beer, which the complainant drank at the hotel. After they had finished drinking, all three came to Tailevu town from where the offenders were to return home in a vehicle the complainant promised to arrange.

[5] When they arrived at the town, the complainant reneged on his promise and did not arrange for a transport for the offenders. When the offenders learnt that the complainant had not arranged any transport for them, they got angry and punched him. The complainant was punched by both offenders. He received a cut on his lip.

[6] After punching the complainant, the first offender took the complainant’s mobile phone, MP3 player, and $10.00 cash without his consent.

[7] The complainant reported the incident to the police. The offenders were arrested. The first offender voluntarily returned the mobile phone and MP3 player to the police. Under caution, the offenders admitted the offences.

1st Offender

[8] The 1st offender is 28 years old. He is married with three children. He is a farmer and earns about $100 per week by selling yaqona and dalo.

2nd Offender

[9] The 2nd offender is 24 years old and is married. He has two children. He is a farmer and earns about $100.00 per week.

Reconciliation

[10] The offenders have apologized to the complainant. The complainant gave evidence that he has reconciled with the offenders. The offenders’ fathers have also apologized to the complainant’s family.

Previous Good Character

[11] The offenders do not have any criminal history. They are first time offenders.

Time Spent in Custody

[12] The offenders have been in custody on remand since 18 April 2010. They have spent one month in custody which I take into account.

Maximum Penalty

[13] The maximum penalty for the offence of assault causing actual bodily harm is 5 years imprisonment. The maximum penalty for the offence of theft is 10 years imprisonment.

Mitigating Factors

[14] The mitigating factors are:

Early guilty pleas;

Previous good character;

Remorse;

Reconciliation; and

Voluntarily release of stolen properties.

Aggravating Factors

[15] There is no aggravating factor except that the offenders were drunk when they committed the offences.

Sentence

[16] Taking all these matters into account, I sentence the 1st offender to 6 months imprisonment for assault causing actual bodily harm and 12 months imprisonment for theft, to be served concurrently. The 2nd offender is sentenced to 6 months imprisonment for assault causing actual bodily harm.

[17] I have considered suspending the sentences. I am satisfied that the time both offenders spent in custody on remand is sufficient to deter them from committing these kind of offences and to signify that the court and the community denounce the commission of such offences. I give priority to the principle of rehabilitation in this case and have decided to suspend the imprisonment sentences of the offenders.

[18] The imprisonment sentences of both offenders are suspended for two years. They are advised that if they commit any further offence during the operational suspended term of two years, they may have to serve the imprisonment sentences in this case.

[19] I order that the recovered stolen properties be returned to the complainant forthwith.

Daniel Goundar
JUDGE

At Suva
21st May 2010

Solicitors:
Office of the Director of Public Prosecutions for State

Both Accused appeared in person