State v Trail [2011] FJHC 613; HAC131.2011 (3 October 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

HIGH COURT CRIMINALCASE NO: HAC 181 OF 2011

BETWEEN:

STATE
PROSECUTION

AND:

JOHN CAGINILIWALALA TRAIL
ACCUSED PERSON

Counsel: For State - Ms. S. Puamau
For Accused Person - Mr. J. Waqainabete

Date of Hearing: 22 September 2011
Date of Sentence: 03 October 2011

SENTENCE

[1] The accused John Caginiliwalala Trail entered a plea of guilty for the following charge:

Statement of Offence

ACT WITH INTENT TO CAUSE GRIEVOUS BODILY HARM: Contrary to section 255(a) of the Crimes Decree 44 of 2009.

Particulars of Offence

JOHN CAGINILIWALALA TRAIL on the 11th day of June 2011 at 9 Munia Street, Samabula, in the Central Division, with intent to do some grievous harm to JACOB MICHAEL unlawfully wounded the said JACOB MICHAEL with a piece of timber.

[2] The facts of the case were that on 11/6/2011 between 10.30pm – 11.00pm, the accused was drinking beer with his friends when a fight began. Accused saw his cousin being punched hence went to intervene and get hold of him when someone punched him on the left of his face.

The accused turned and punched the complainant on the face causing him to fall backwards and his head instantly hit the cement. He then picked up a piece of 4x2 timber which he continuously hit the complainant with on the chest, leg and head, causing him grievous bodily harm. Blood was visible on the head of the complainant.

One Michael Lepolo tried to intervene however, he failed. The accused then left the complainant on the driveway and walked away. One Josaia Turaga, came out of the house they were drinking in and saw the complainant laying outside by the driveway. He then took him to the hospital in a taxi. The complainant was later taken for medical examination for which he underwent treatment for some time at the hospital. Medical findings pursuant to the said examination of the complainant revealed severe head injury with a fracture at the base of the skull. He is likely to suffer permanent haemorrhage for which full assessment can be conducted within 18 months.

[3] The maximum penalty prescribed for the offence of Act with intent to cause grievous harm in the Crimes Decree No. 44 of 2009 is imprisonment for life.

[4] In State v Chand (2011) FJHC 19 HAC 07 of 2011 (17 January 2011) Justice Madigan stated:

"The maximum penalty for the offence of act with intent to cause grievous harm is imprisonment for life. This is an offence relatively new to the jurisdiction, introduced by the Crimes Decree 2009 on February 1st of 2010. Until a body of sentencing authorities is secured, it is helpful to rely on the analogous section 224 of the old Penal Code, the offence of an act intended to cause grievous harm. It was established in Viliame Cavubati – HAA 80 of 2010 by Shameem J. that the accepted tariff for this offence should range from a suspended sentence through to 2 ½ years. This Court said in Amasi Korovata – HAC 11 of 2009 that the range now should extend up to 4 to 5 years."

[5] In State v Dinesh Chand (2002) FJCA 50; AAU 0027.2000S (1 March 2002) where the accused was found guilty after trial the Fiji Court of Appeal said, that a period of 6 to 9 months of imprisonment would be appropriate than a suspended sentence.

[6] In State v Tuitoga [2005] FJHC 88; HAM 0016D.2005S the High Court after addressing the tariff for the offence of Act with Intent to cause grievous harm said, the tariff to be 6 months to 5 years imprisonment.

[7] Considering the facts of this case, I take 2 years as the starting point. The aggravating features are:

1. The accused used a piece of timber as a weapon;
2. The said weapon was used repeatedly even after the victim fell on the cement after being punched, causing him serious injury.
   

I add 3 years for the above aggravating factors bringing it to a total of 5 years imprisonment.

[8] The accused pleaded guilty, being remorseful and saving time and expenses of the Court and the prosecution. I reduce the sentence by 18 months to reflect the said early guilty plea, making it to a total of 3 ½ years imprisonment.

[9] The other mitigating factors are that the accused is a first offender, a young offender of 20 years old. His parents are separated and he lives with his mother and 2 brothers. He is a student at the Fiji National University, pursuing a Diploma in Customs studies. Accused is a volunteer of the Foundation for the Education of Needy Children in Fiji. He is of previous good character and he is remorseful. I also consider that there was certain amount of provocation and that the accused acted in retaliation when he was punched first. When arrested, the accused co-operated with the police. Considering the above mitigating factors I reduce another 2 ½ years bringing the total to 1 year imprisonment.

[10] Now I consider whether the above sentence of 1 year imprisonment should be suspended as urged by the Accused.

[11] In State v Chand (supra) the Fiji Court of Appeal said:

"...wounding another person with a weapon should, almost always, be visited with immediate imprisonment...".

Considering the circumstance of that case, the Court of Appeal said that a period of 6 to 9 months would have been more appropriate than the suspended sentence.

[12] The New Zealand Court of Appeal in R v Peterson (1994) 2 NZLR 533 outlining the principles of suspended sentence said:

"...the courts first duty was to consider what would be the appropriate immediate custodial sentence, pass that and then consider whether there were grounds for suspending it. Factors should be considered were clearly mentioned in that case. The factors when it comes to the offender as the age, previous good record, long period of free of criminal activity, and as to the circumstances of the particular case diminished culpability arising through lack of pre meditation, the presence of provocation and cooperation with the authorities all those factors are applicable to the present case."

[13] In the case of Mosese Nariva v the State [2006] FJHC; HAA 0148J.2005S (9 February 2006) Madam Justice Shameem stated:

"....the courts must always make every effort to keep young first offenders out of prison. Prisons do not always rehabilitate the young offender. Non-custodial measures should be carefully explored first to assess whether the offender would acquire accountability and a sense of responsibility from such measures in preference to imprisonment."

[14] In this case the accused is a young offender of 20 years old. He is a first offender who pleaded guilty being remorseful. In the circumstances I find that this is a fit case where the above sentence should be suspended.

[15] Therefore I suspend the 1 year imprisonment sentence for 2 years.

[16] Finally the accused is sentenced to 1 year imprisonment suspended for 2 years.

Priyantha Fernando
JUDGE
At Suva
03 October 2011