Rasigarea v State [2010] FJHC 296; HAA020.2010 (12 August 2010)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL APPEAL NO. HAA 20 OF 2010

BETWEEN:

RUPENI RASIGAREA
APPELLANT

AND:

STATE
RESPONDENT

Counsel: Mr. A. Sen - for the Appellant
Mr. L. Sovau - for the Respondent

Date of Hearing: 11 August 2010
Date of Judgment: 12 August 2010

JUDGMENT

Background

1. The appellant was charged as follows before the Magistrate of Labasa.

Statement of Offence [a]

ASSAULT OF OCCASIONING ACTUAL BODILY HARM: Contrary to section 245 of Penal Code, Cap 17.

Particulars of Offence [b]

RUPENI RASIGAREA on the 20th day of July, 2009 at Labasa in the Northern Division assaulted one VILIAME LAUTIKI thereby occasioning him actual bodily harm.

2. The appellant pleaded guilty to the charge on the very first available opportunity i.e. on 30/06/2010.

3. The appellant is not contesting the conviction but the sentence and submits the sentence was "too harsh and excessive".

4. The Learned Magistrate has given the sentence and the reasons as follows:

Sentencing

1. Convicted of Assault Occasioning Actual Bodily Harm, Contrary to Section 245 of Penal Code.
   
2. Admitted Summary of Facts.
   
3. Maximum sentence is 5 years.
   
4. Tariff is for 9 months to 3 years.
   
5. Previous conviction - 41 years, married with 4 children.
   
6. Aggravating factor - victim is a young child of 12 years old. Agree difference is 29 years.
   

Victim suffered bruising, abrasive and swelling on the upper limp.

Also, threatening to kill him with a gun.

7. Mitigating factor – forgiveness as induced by reconciliation.
   
8. This is a classic David and Goliath case where you used your power and massive body weight against a 12 year old boy who is still growing.
   
9. In the Bible David was able to overpower Goliath. Unfortunately, not so here.
   
10. I will not give you any credit for charging you plea at this stage of the matter as you had been maintaining a non guilty plea since 07/09/09.
    
11. For your sentence, I start with 9 months. I add 3 for aggravating factor. I deduct 3 months for mitigating factor/previous convictions
    

You are sentenced to 6 months. 28 days.

5. The Magistrate has misdirected himself with the tariff. In Elizabeth Joseph vs The State (2204) HAA 073/04, the High Court sets the tariff as absolute or conditional discharge to 12 months imprisonment which is followed by many Courts.

6. The Learned Magistrate has commenced at 9 months and ended up with 6 months custodial imprisonment. Considering this facts of the case I am unable to agree with the Magistrate.

7. Further the Learned Magistrate has not given due consideration for the previous good conduct.

8. I find the Magistrate's calculation of sentence is incorrect. I reproduce the relevant paragraph of sentencing as follows:

"For your sentence, I start with 9 months. I add 3 for aggravating factor. I deduct 3 months for mitigating factor/previous convictions".

If he commences at 9 months and add three months it will be 12 months, if he deduct 3 months it will be 9 months. I am unable to understand how the Magistrate got a figure of 6 months. It appears there is an ambiguity in the sentence.

9. The State Counsel following the highest tradition of the Office of Director of Public Prosecution had submitted that the sentence is wrong.

10. The accused appellant and the Counsel does not challenge the conviction. On perusing the record I too find the conviction is unequivocal and acceptable by Law.

11. Considering all above factors I find the sentence is incorrect and unable to accept by any standards therefore I set aside the sentence.

12. Considering the period served in prison by the appellant and time to be consumed in the Magistrates Court, it will be unfair by the appellant, if I send this case to the Learned Magistrate for re-sentencing therefore the powers vested with the High Court under High Court Rules 1988 Rule 55 (7)(5): I decided to impose the sentence.

13. Rules 55 (7) (5) reads as follows:

"The Court may give any judgment or decision or make any order which ought to have been given or made by the court, tribunal or person and make such further or other order as the case may require or may remit the matter with the opinion of the Court for rehearing and determination by it or him".

14. The charge against the appellant was already set out in 1st paragraph is under section 245 of the Penal Code Cap 17. The maximum penalty is 5 years imprisonment.

15. Considering the facts of the case I commence the sentence with 6 months imprisonment.

16. Aggravating factors are as follows:

1. Victim is a young child of 12 years
   
2. There is non grievous injury on the victim child's face
   

100. The appellant has threatened the child with death
     

Considering above factors I add 3 months. Now the appellant's sentence is 9 months.

17. Mitigating factors are as follows:

1. Pleaded guilty at the earliest possible opportunity
   
2. No previous conviction and first time offender
   

100. 41 years old
     

4. Married with 4 children
   
5. Asking for forgiveness and induced by reconciliation
   

When I consider the mitigating factors I decide it will be reasonable to deduct 6 months imprisonment. Now your sentence is 3 months.

18. Since you have served five weeks with prison pending appeal I decided to suspend your sentence for one year.

19. Your sentence is suspended for 1 year. You are explained the gravity of the suspended sentence. If you commit any offence within the operational period you have to serve this sentence together with other sentence.

20. Subject to the variation in sentence the appeal is dismissed.

21. I am pleased to place it on record that the conduct of the State Counsel, he is fair in his submission and fully cooperated to dispose this appeal.

S. Thurairaja
JUDGE

Solicitors: - Mr. A Sen for the Appellant
- Officer of the Director of Public Prosecutions for the State