State v Lupo - Sentence [2012] FJHC 1096; HAC53.2012 (3 May 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 53 OF 2012

BETWEEN:

THE STATE

AND:

ARE LUPO

Counsel : Mr T. Qalinauci for State
Accused in person

Date of Hearing : 3rd May 2012
Date of Sentence : 3rd May 2012

SENTENCE

1. The Director of Public Prosecution had preferred the following charges against the Accused above named.

Statement of Offence

ACTS ITENDED TO CAUSE GRIEVOUS HARM: Contrary to Section 255(a) of the Crimes Decree No. 44 of 2009.

Particulars of the Offence

ARE LUPO on the 26th day of February 2011 at Nadi in the Western Division, with intent to do some grievous harm to IVA WATTO, unlawfully wounded the said IVA WATTO.

2. When the case was mentioned to take the Plea the Accused pleaded guilty to the charges leveled against him.

3. The Accused admitted to the Summary of Facts except using of the knife. The summary of facts are re-produced for easy reference:

"On the 26th February 2011, one Are Lupo, the accused, a 41 year old farmer of Nakavu Village in Nadi threw a piece of block at one Iva Wotta, the victim, a 42 year old woman also of Nakavu Village, wherein she sustained several injuries which included hugely swollen abrasions on her right shoulder, which were also bruised and very tender to touch.

On the 26th February 2011 at around 8am in the morning, the victim was at home washing the clothes, when the accused, who is also her husband, started complaining about their house and the fact that it was dirty. The victim told the accused that she can only clean the house on Saturday's, as that was her day off and that during the week, she is busy at work, but could carry out some cleaning of the house once she returned from work in the afternoon's during the week.

The accused after hearing this got a hold of a washing basin and threw this on the victim's face. The victim/complainant walked away from the accused, as she was doing so, the accused threw a piece of block on her back. When the victim entered the house, the accused then picked up a kitchen knife and tried to throw this at the victim, but she ran to her mother in laws house.

The victim told her mother in law about what her husband had done to her that morning and she encouraged her to report the matter to the police. The victim then reported the matter at the Nadi Police Station.

The accused was interviewed under caution and admitted committing the offence in questions number 22 to 27 of the caution interview and furthermore the accused sought forgiveness and admitted throwing the piece of block at the victim in the charge statement."

4. Being convinced with the Plea to be unequivocal the Accused was found guilty by the Court.

5. Section 255 prescribes a maximum sentence up to imprisonment for life.

6. 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 20101 by Shameem J. that the accepted tariff for this offence should range from a suspended sentence through to 2½ years. This court said in Amasi Korovata – HAC 11 of 2009 that the range now should extend up to 4 to 5 years."

7. 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.

8. In State v Tuitoga (2005) FJHC 88; HAM 00116D.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.

9. Considering all, I commence your sentencing at 12 months imprisonment.

10. Considering the aggravating factors

a. you have assaulted your wife, who was defenseless at that time

Considering the aggravating factors I increase the sentence by 1 month. Now your sentence is 13 months imprisonment.

11. Considering your mitigation circumstances:

1. You are a first offender;
2. Your are married to the victim for more than 20 years;

100. You are remorseful;

4. You claim you apologized to your wife at the Police Station itself;
5. You claim that you and wife had reconciled;
6. You are a farmer earning $50 a week;
7. You have a school going son to look after;
8. You claim you are remanded for 3 months in this case and still in remand;
9. You promised not to reoffend;
   

Considering all I reduce your sentence by 9 months. Now your sentence is 4 months imprisonment.

13. You plead with the Court to act under section 26(1) of the Sentencing and Penalties decree and suspend your sentence.

14. Considering all circumstances, I am convinced you definitely fall under the Perview of Section 26(1) of the Sentencing and Penalties Decree. Therefore, I suspend you sentence for a period of 9 months.

15. You are sentenced to 4 months imprisonment and the same is suspended for 9 months. The nature and consequences of the suspended sentence is explained to the accused.

16. 30 days to appeal to the Court of Appeal.

S Thurairaja
Judge

At Lautoka
3rd May 2012

Solicitors : Office of the Director of Public Prosecution for State
Accused in person