State v Bati [2010] FJHC 434; Criminal Case 075 of 2010 (21 September 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. 075 OF 2010

BETWEEN:

STATE

AND:

TAVENA BATI

Accused in Person
Ms I. Whippy (10th) & Mr. M. Korovou (17th) for the State

Date of Hearing: 10 & 17 September 2010
Date of Sentence: 21 September 2010

SENTENCE

[1] The accused has been charged with two offences on an information which reads as follows:

FIRST COUNT

Statement of Offence

Act with Intent to Cause Griveous (sic) Harm: Contrary to section 255(a) of the Crime (sic) Decree No. 44 of 2009.

Particulars of Offence

TAVENA BATI on the 6th day of June 2010 at Nadi, in the Western Division unlawfully maliciously did grievous harm to Masilina Nainasa.

SECOND COUNT

Statement of Offence

Indecent Assault: Contrary to section 212(1) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

TAVENA BATI on the 6th day of June 2009 at Nadi in the Western Division unlawfully and indecently assaulted Masilina Nainasa by squeezing her breast.

[2] To this information the accused pleaded guilty in this Court on the 10th September 2010, a plea which after examination was found to be unequivocal. The matter was adjourned for sentence until the 17th September.

[3] On the 17th September, a set of facts prepared by the State was put to the accused in both English and the Fijian vernacular, to which he said he understood them and admitted them.

[4] It then became obvious to the Court that not only was the information woefully defective in respect of the first count, but also the facts admitted (along with an attached medical report) did not disclose any offence of grievous bodily harm, be it by intent or deed.

[5] The statement of offence is "act with intent to cause griveous (sic) harm, whilst the particulars claim "unlawfully maliciously did grievous harm". Apart from the fact that the section in the Decree does not refer to "maliciously", there is obviously a huge difference between "intent" and "doing" grievous harm. When enquiring of the prosecutor on which limb he was wishing to proceed he was unable to inform the Court because (unbelievably) he had come to Court only with a copy of the facts and no copy of the information and no file.

[6] The facts of the case presented in Court are these:

"On the 6th of June 2010 at about 3am at Saunaka Village in Nadi the accused TAVENA BATI viciously physically assaulted and indecently assaulted MASILINA NAINASA.

The complainant had been at the Steps Nightclub with a friend earlier. They decided to head home to Saunaka Village. Outside of the nightclub the two friends got into a taxi. The accused forcefully boarded the taxi and sat beside the drier

while the two friends sat at the back seat. No one said anything. The accused also lived at Saunaka Village and knew the complainant and her friend.

When the taxi stopped at Saunaka Village the complainant was still in the vehicle when the accused came to her door and opened it. He then pulled her top and pulled at her left shoulder and hand. The complainant tried to free herself but the accused persisted to pull at her. The complainant then asked the accused to let her go as she could feel him squeezing at her breasts. She yelled out in Fijian for the accused to leave her alone which only angered the accused.

The accused continued to pull at the complainant and started punch her face and body. The complainant tried to cover her face but he managed to land punches on her face and other parts of her body. Three people came to the complainant's aid when they heard her screams and cries. The accused ran away when he saw them approaching.

Injuries sustained by the complainant are outlined in the medical report."

[7] The medical report attached describes the victim's injuries as follows (in so much as the writing of the medical officer can be deciphered):

"1) abrasion neck right hand side.

2. (indecipherable) abrasion.
   
3. Nose – (indecipherable) feeling bit swollen.
   
4. Scalp – (indecipherable) normal".
   

These injuries such as abrasions cannot in any way be said to be grievous harm. Grievous harm is defined in the Decree as follows:

"grievous harm" means any harm which –

(a) amounts to a maim of dangerous harm; or

(b) seriously or permanent injures health or which is likely so to injure wealth; or

(c) extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, member or sense.

[8] There is no evidence before the Court that this victim was maimed, or even seriously or permanently injured. Abrasions heal in time; there has to be at the very least a cutting of the skin to even start considering grievous harm. That being the case, the Court considered that the offence was not made out by the facts (neither an intent to cause grievous harm nor doing grievous harm), and that view being conveyed to the State, a submission was not made for the finding of an alternative charge.

[9] The accused being unrepresented, it was not for the Court of its own motion to find a lesser charge proved to cover the State's appalling information and summary of facts and therefore the accused was found not guilty of the first count, acquitted and discharged.

[10] The elements of the second count then appearing to have been made out and admitted, the accused was convicted on the second count and the matter was adjourned until today for sentence on that count.

[11] However, in preparing the sentence for indecent assault, it has been noted that the information in respect of the second count alleges that this assault occurred in 2009, whereas the facts admitted are of an assault in 2010.

[12] The summary of facts admitted by the accused, alludes to an indecent assault in 2010, and one wonders if this admission is to that of the assault that the information alleges in 2009. Given that the accused has already pleaded guilty to the information ("2009") and given that an error of date is not material, I find that the accused is not embarrassed in his defence if the Court amends the date in the second count to 2010, pursuant to section 214(2) of the Criminal Procedure Decree 2009.

[13] The indecent assault admitted is neither invasive, nor were any weapons used to effect it. I must however take into account the degree of violence occasioned to the victim when her breast was seized. He pulled her top and punched her on the face and body.

[14] In the case of Ratu Penioni Rokata – HAA 68 of 2002 the Court said:

"Sentences for indecent assault range from 12 months to four years. Gravity will determine the starting point for the offence. The nature of the assault whether it was penetrative, whether gratuitous violence was used, whether weapons or other implements were used and the length of time over which the assaults were perpetrated, all reflect on the gravity of the offence."

[15] In this case I take a starting point of twelve months. For the serious aggravation of violence I add a further 6 months. For your plea of guilty and time spent in custody I deduct 8 months; which means you will go to prison for a period of ten months.

[16] It must be said that it is shocking that the State's information has been so sloppily and casually prepared. It contains errors of spelling, errors of elements of charge, errors of dates, even the most basic error of referring to the Crimes Decree as the Crime Decree. There is no excuse for such sloppiness and it has led to the necessary discharge of a man accused of rather a nasty crime.

[17] In addition, the summary of facts put to the accused does not disclose any offence of grievous harm. It is obvious when preparing a summary of facts for plea, that each element of the offence sought to be admitted should be made out because if it is not then the admission of the facts is worthless.

[18] It is also a matter of no small concern that prosecutors would come to the High Court on a matter as important as a plea and sentence without the file or a copy of the information. The prosecutor can as a result be in no position to assist the Court, should difficulties arise as they have in this case. The laxity of State Counsel in this case has impeded the administration of justice.

[19] This now becomes a matter for the Director of Public Prosecutions but the Court would wish to signal its utter frustration and keen disappointment at the resultant state of affairs.

Paul K. Madigan
Judge

At Lautoka
21 September 2010