State v Coka [2011] FJHC 24; HAC017.2009 (28 January 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 017 OF 2009

BETWEEN:

THE STATE

AND:

SAMISONI COKA

Counsels : Mr. L. Fotofili for the State
Mr. J. Waqainabete for the Accused

Date of Sentence : 28th January 2011

SENTENCE

[1] The accused was initially charged for Manslaughter punishable under
Sections 198 and 201 of the Penal Code, Cap 17.

[2] Subsequently it was amended and the Director of Public Prosecution
preferred the following charge against the 2nd Accused Samisoni Coka.

"SAMISONI COKA is charged with the following offence:

SECOND COUNT

Statement of Offence

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

Particulars of Offence

SAMISONI COKA on the 24th day of December 2008, at Nacomoto, Kadavu in the Western Division, assaulted SIKELI TAVOLA NAITINI thereby occasioning him actual bodily harm."

[3] When the case was mentioned on 25th January 2011 the Accused had
pleaded guilty to the charge, accepting the plea to be unequivocal, the Court convicted the Accused as per the information.

[4] State Counsel had submitted the summary of facts as follows:

"On Wednesday the 24th day of December 2008 at about 6.45 pm, the following persons were drinking rum and "home brew" together under a MANGO TREE at a place called Daga in Nacomoto village, Kadavu:

1. Atunaisa Seru (1st Accused)
2. Samisoni Coka (2nd Accused)
3. Sikeli Naitini (Deceased)

And 10 others.

During their drinking session, another argument developed between the deceased Sikeli Naitini and the 1st accused Atunaisa Seru where both persons swore at each other. This was their second argument on that same day.

This argument developed into fisticuffs where both the deceased and the 1st Accused punched each other. It was the deceased who threw the 1st punch to the 1st Accused.

The 1st Accused did not retreat and in his anger, he retaliated and threw a few punches which landed on the face and other parts of the deceased's body.

Seeing the fight, the brother of the deceased and others witnessing the fight intervened to stop it. This resulted in the 1st Accused was sentenced on 23-07-10 to 3 months imprisonment suspended for 2 years.

It was after the 1st accused left the scene to return to the village on 24th December 2008 after fighting with the Deceased, that the 2nd Accused Samisoni Coka and the deceased got into another argument. This would be their second argument.

Their first argument was at least 2 hours earlier whereby the Deceased had slapped the 2nd Accused on the face.

During the second argument after the 1st Accused had returned to the village, the 2nd Accused confronted the deceased asking the deceased why he had punched the 1st Accused Atunaisa Seru. This is when the deceased threw the first punch, hitting the 2nd Accused in the face. This provoked the 2nd Accused who in his anger, retaliated and threw about 10 punches which landed on the mouth, face, neck and other parts of the deceased's body. The 2nd Accused admitted this in his caution interview. The fight took about 3 minutes until when all of a sudden; the deceased fell forward onto the ground. It was as if, someone had pushed the deceased from behind.

The Deceased was unconscious from thereon and did not move when on the ground. Some of the other males present at that time then carried the deceased to Nacomoto village but upon arriving at the village, they found the deceased to have passed away.

Dr. Abha Gupta a pathologist conducted the post mortem on the body of the deceased on 30-12-08 and concluded that the deceased died from Intra Cranial Haemorrhage due to physical assault. It is not known whether the 2nd Accused solely caused this injury resulting in death.

However, the pathologist did find that the Deceased had a small laceration to his lower lip and blood was present on the upper and lower teeth. The Deceased also had blood in his nostrils. The Deceased suffered this external visible bodily injuries or harm as a result of being assaulted by the 1st and 2nd Accused".

The 2nd Accused had admitted summary of facts, stated above.

[5] Section 245 of the Penal Code states as follows:

"Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanor, and is liable to imprisonment for five years with or without corporal punishment".

[6] As per section 245 the maximum punishment can be imposed up to 5 years imprisonment.

[7] Now I consider the tariff to the offence of Assault Occasioning Actual Bodily Harm.

The tariff for this offence appears to range from an absolute or conditional discharge to 12 months imprisonment. The High Court said in Elizabeth Joseph vs The State (2004 HAA 073/04 which is followed by Madam Shameem J in State v Salote Tugalala HAC 025/2008.

[8] Considering the nature of the offence I commence the sentence at 12 months imprisonment.

[9] Now I consider the aggravating factors:

1. The victim had succumbed to his injuries.
2. The 2nd Accused assaulted the victim severely.
   

Considering the nature of the aggravating factors I increase the sentence by 3 months. Now the sentence is 15 months imprisonment.

[10] Now I consider the mitigating circumstances.

1. The 2nd Accused is a first offender.
2. 2nd Accused pleaded guilty to the information before the trial commenced.

100. The 2nd Accused was in remand for 8 months.

4. The 2nd Accused was remorseful.
5. The 2nd Accused is willing to rehabilitate himself as proposed by the Counsel of Legal Aid Commission.
   

Considering all above mitigating circumstances I reduce 12 months. Now the sentence is 3 months.

[11] Considering the period the 2nd Accused spent in remand pending trial and that he is a 1st offender. I act under Section 26 of the Sentencing and Penalties Decrees I suspend the sentence of 3 months to a period of 2 years.

[12] The 2nd Accused is explained the nature and the consequences of suspended sentence. If he commits any offence within the operational period, on conviction he will be serving the imprisonment in addition to the punishment that is imposed in the later case.

[13] 3 months imprisonment suspend for 2 years.

[14] 30 days to appeal.

S Thurairaja
Judge
At Suva

Solicitors
Office of the Director of Public Prosecution for State
Office of the Legal Aid Commission for the Accused