State v Makutu [2012] FJHC 1081; HAC141.2011 (15 May 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO : HAC 141 OF 2011

BETWEEN:

STATE:
Prosecution

AND:

RATU TEVITA NABEKASIGA MAKUTU:
Accused

Mr F Lacanivalu with Ms S Kiran for the State
Mr T. Terere (Legal Aid Commission) for the Accused

Date of Sentence : 15 May 2012

SENTENCE

1. The accused was convicted of the offence of 'Act with Intent to Cause Bodily Harm' punishable under Section 255 (a) of the Crimes Decree No 44 of 2009 on 16 April 2012 on his plea of 'guilty'. The injured was Makelesi Volavola, who was the legally married wife of the accused; but, living in separation. The plea was found to be free, voluntary and unequivocal.
   
2. Facts, as admitted by the accused, revealed that he visited the Fijian Resort, where the injured was working, around 0715 on 15 May 2011 and accosted her on her way to the House Keeping Department to which she was attached. The accused, having made a threat, struck the injured with a cane-knife, which was concealed in his person resulting in multiple injuries.
   
3. Medical Officer's Report showed that the injured had sustained an 8 cm x 4 cm laceration on the left wrist and some lacerations on both thighs. Other two lacerations are not specified in terms of their locations. Neither the agreed facts nor the Victim Impact Statement specify them.
   
4. It is in light of this set of facts that this court needs to consider the sentence that must be imposed on the accused upon his plea of guilt, which was tendered on the first available opportunity after making attempts for reconciliation and forgiveness.
   
5. The sentence that is prescribed under Section 255 (a) of the Crimes Decree No 44 of 2009 (Crimes Decree) is life imprisonment. The range of sentence that has been set by sentencing guidelines is from six months to five years depending on facts and circumstances of the case with a starting point at two years where the injuries have been caused by a weapon. State v Mokubala (2003) FJHC 164; State v Hussein FJHC (2009) FJHC 7. This range that was adopted in relation to the corresponding offence under Section 224 of the Penal Code continues to be applied under the Crimes Decree as well (State v Tuigulagula FJHC 163).
   
6. There is no evidence before me that the injured has suffered any permanent impairment as a result of the injuries inflicted by the accused. I, therefore, pick-up a two year term of imprisonment as the starting point having regard to the fact that the harm was caused by lethal force with the use of a cane-knife. The offence is aggravated as the accused had not only invaded the person of the injured but also the place of her work, which gives shelter to many people seeking accommodation with tranquility. I add six months for this form of aggravation and reach at thirty months at the interim.
   
7. The accused pleaded guilty to the charge on the first opportunity for which he is entitled to a discount of ten months. I accordingly reach at twenty months after reduction of the sentence by the discounted ten months.
   
8. The accused submits that he was saddened by the fact that the injured had chosen to desert him and the three children of 16-8 years of age in order to live with another while their legal marriage was still subsisting. His persistent, but unsuccessful, endeavours for her to unite with the family umpteen times appear to have fallen on deaf ears. This seems to have resulted in a strong passion of disharmony leading to a loss of rational thinking and judgment in the mind of the accused. While such factors cannot be regarded justifiable altogether to use lethal force on a woman, court equally should not simply disregard such circumstances on the matter of sentence when the offender is found to have been imbalanced by them as is the case in point. I reduce three months considering the plea of the accused for lenience on those grounds.
   
9. Other circumstances of mitigation are that soon after his offensive conduct, the accused surrendered himself to police and co-operated with the investigation. Under interrogation, he admitted the crime. The accused sought forgiveness and reconciliation from the injured in traditional iTauki fashion by offering a 'bulubulu' or presentation of a whale's tooth to the injured and the family. I reduce further three months for these gestures of the accused, which reflect true remorse and repent.
10. The accused has become the sole breadwinner in the family now. He also needs to look after his children, who are now reaching the state of adolescence. I am inclined to reduce a further period of two months for these mitigating factors.
    
11. Before pronouncing the final sentence, I took into account the provisions of Section 4 (3) of the Sentencing and Penalties Decree (S&P Decree) to consider possible enhancement of the sentence based on the criteria set-out in the section. I find no circumstances to fit into the criteria to aggravate the offending that warrants further enhancement of the sentence.
    
12. The prosecution purported to file a 'Victim Impact Report', which is without material particulars. It rendered no helpful assistance for the purposes under Section 4 (2) of the S&P Decree.
    
13. The upshot of overall considerations, as set-out above, is that, although the accused had used a lethal weapon, the prosecution has failed to establish the severity of injuries in terms of their locations, sizes and the degree of impairment, if any; and, also the resultant impact on the injured. I, accordingly, impose a term of twelve month-imprisonment. The sentence is to take effect from 15 May 2012.
    

Priyantha Nāwāna
Judge
High Court
Lautoka
15 May 2012.