State v Rabia [2012] FJHC 877; HAC074.2011 (22 February 2012)

IN THE HIGH COURT OF FIJI
AT SUVA

CRIMINAL JURISDICTION

Criminal Case No. HAC 074 of 2011

BETWEEN:

STATE

AND:

ASESELA RABIA

Counsel: Mr. Prasad Y for State
Ms. Nawasaitoga for Accused

Date of Sentence: 22nd February 2012

SENTENCE

1. Asesela Rabia you stand convicted on your own plea of guilty of one count of Act with Intent to Cause Grievous Harm contrary to section 255 (a) of the Crimes Decree No. 44 of 2009 and one count of Grievous Harm contrary to section 258 of the Crimes Decree 2009.
   
2. The facts of the case as you admitted in the summary of facts are, that on 27th February 2011 at about 20.00 hours, the 1st complainant your de facto partner Ana Valu went to bedroom and you too walked in to sleep.
   
3. The 1st complainant being 3 months pregnant at that time, as she could not stand the sight or smell of you, told you not to sleep with her and she went to the lounge room to lie down. You then followed her and told her to go back to the room to sleep with her. The complainant refused. Then you pulled her, got the cane knife which you saw in the house, struck the 1st complainant 4 times with the blunt side of the knife. Then you turned the side of the knife and struck the complainant using the sharp edge on her head and hand.
   
4. The 1st complainant ran to her cousin the 2nd complainant's room to take cover. You in the process struck the 2nd complainant Kelera Kelokelo also with the knife.
   
5. The 1st complainant who was pregnant suffered injuries to her head and also lost her right hand as it was severed. 2nd complainant was a known diabetic patient and had a laceration over the left thumb associated with fracture needing subsequent medical checkup.
   
6. The aggravating factors are that the 1st complainant was your de facto partner who was 3 months pregnant. Although the Counsel for Defence submitted that real victims include your 4 month old son, when you struck the de facto partner with the cane knife on her head and hand severing the hand, you did not care whether the victim was pregnant or didn't care for the child to be born. Refusing to sleep with you cannot be considered a reason for provocation to behave like you did. Both the victims were unarmed and in a vulnerable state.
   
7. In mitigation, I consider that you are a first offender and that this was not a pre planned attack. You pleaded guilty saving time and resources of Court and the victims.
   
8. The Counsel further submitted that on previous occasions the victim 1st complainant tried to abort the child and kept on chasing the accused saying that she did not want him anymore. These facts were not evident or admitted in the summary of facts. However, these previous incidents cannot be accepted as reasons for provocation for you to act in this manner as you did on this occasion.
   
9. It is submitted that you are remorseful and this was brought embarrassment and humiliation to your family. Your de facto partner has forgiven you. You look after your parents, brothers and sisters and older brother's 3 children by farming. You had been in remand for more than 11 months.
   
10. The maximum penalty for the offence of act with intent to cause grievous harm is life imprisonment.
    
11. In the case of State v Mokubula HAA0052 of 2003S, Shameem J on the basis of authorities cited, set the tariff for sentences for the offence of Act with intent to cause grievous harm to be 6 months to 5 years imprisonment. In a case of an attack by a weapon, the starting point should range from 2 years imprisonment to 5 years depending on the weapon. The learned Judge said, that the aggravating factors would be:
    
    1. Seriousness of the injuries;
    2. Evidence of premeditation or planning;
    3. Length and nature of the attack;
    4. Special vulnerability of the victim.
       

Mitigating factors would be:

1. Previous good character;
2. Guilty plea;
3. Provocation by the victim;
4. Apology, reparation or compensation.
   
12. In case of State v Emosi Taku Tuigulegule HAC 081 of 2010, Justice Madigan sentenced the accused who pleaded guilty for striking his wife with a cane knife severing fingers in both hands excluding the thumbs and also injuring the head, for 6 years imprisonment.
    
13. I must also consider that this is a domestic violence offence in terms of the Domestic Violence Act, as the 1st complainant is the de facto partner of the accused. Section 4 (3) of the Sentencing and Penalties Decree 2009 provides provision on matters the Court should give regard to, when sentencing an offender involving domestic violence offence.
    
14. In this case the nature of the injuries to the 1st complainant is very serious. Her hand was severed as a result of the accused striking with the cane knife when the victim was 3 months pregnant. Her head was also injured where large amount of tissues were cut.
    
15. Considering the above, for Count No. 1, I take 5 years imprisonment as the starting point. I add 5 years for the aggravating factors making as interim total of 10 years. I deduct 3 years for your early guilty plea making an interim total of 7 years. I deduct another 6 months for your mitigating factors including that you are a 1st offender.
    
16. Now your interim total sentence is 6½ years. Considering your 1 year period in remand, I deduct further 12 months and now your final sentence is 5½ years.
    
17. You are not eligible to be released on parole until you serve 5 years imprisonment.
    
18. Your final sentence for Count No. 1 is 5½ years imprisonment with a non parole period of 5 years.
    
19. Since you are convicted of a domestic violence offence, I issue a restraining order against you to protect the victim from any form of violence by you in future.
    
20. I order that:
    
    • (a) You should stay away from the victim in future.
    • (b) You must not commit any form of assault or threat on her in future.
      

The victim may apply to High Court to discharge or vary this restraining order.

21. The maximum penalty for Count No. 2, the offence of grievous harm is imprisonment for 15 years.
    
22. The victim Kelera Kelokelo suffered a cut injury on her left thumb associated with a fracture. The victim involved in this 2nd Count was also a vulnerable witness who was unarmed and was struck with the knife without any provocation.
    
23. Considering the above and all the mitigating factors mentioned before, I sentence the accused on Count No. 2, to 2 years imprisonment.
    
24. The sentences of imprisonment on both counts No. 1 and 2 are to run concurrently.
    
25. Your final sentence is:
    

Count No. 1 – 5 ½ years imprisonment with a non parole period of 5 years. You are not eligible to be released on parole until you serve minimum of 5 years.
Count No. 2 – 2 years imprisonment.

Imprisonment on both Counts 1 and 2, to run concurrently.
Domestic Violence Restraining Order made, as mentioned above.

Priyantha Fernando
Judge

At Suva
Wednesday the 22nd February 2012