State v Baleitamavua [2012] FJHC 988; HAC119.2011 (27 March 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 119/ 2011

BETWEEN:

STATE

AND:

RUPENI BALEITAMAVUA

COUNSELS: Ms. R Drau for the State

Accused in person

Date of Hearing : 20th March, 2012.

Date of Sentence : 27th March, 2012.

SENTENCE

01. The Director of Public Prosecution had preferred the following charge against the accused above named.

Statement of Offence

ASSUALT CAUSING ACTUAL BODILY HARM: Contrary to Section 275 of the Crimes Decree No: 44 of 2009.

Particulars of Offence

RUPENI BALEITAMAVUA on the 7th day of May 2011 at Nadera, in the Central Division, assaulted one NEOMAI ROGOSEKULA thereby occasioning actual bodily harm.

02. When the Plea was taken on the 20th day of July, 2011 the accused had pleaded guilty to the charge against him. Accepting the Plea to be unequivocal this court found him guilty and convicted him under Section 275 of Crimes Decree No: 44 of 2009.

03. State Counsel submitted following summary of facts of which the accused admitted.

On the 07th of July 2011 at about 8.00am the complainant was at home preparing breakfast when the accused walked into the house in the company of some friends and started drinking. Whilst drinking, the accused picked up a beer bottle to hit one of his friends, however at the sight of this, the complainant intervened and told the accused to refrain from throwing the said beer bottle. This aggravated the accused who then turned around and threw the said beer bottle on the head of the complainant, causing her to bleed instantly. The complainant then ran towards the community police post and reported the matter to the police and was later taken for medical examination. Medical findings pursuant to the said examination of the complainant revealed laceration on the right side of the head, swelling on the scalp and 4 cm x 3cm hematoma which were recently sustained via direct trauma to the head. The accused was later interviewed under caution and formally charged.

TARIFF

04. ASSAULT CAUSING ACTUAL BODILY HARM attracts a maximum sentence of 05 years imprisonment Pursuant to Section 275 of the Crimes Decree.

05. The Tariff for ASSUALT CAUSING ACTUAL BODILY HARM was discussed in the recent case of Sereka v State [2008] FJHC 88; HAM 027/2008 the High Court of Fiji at Suva per Hon. Goundar J. held at paragraph 09.

"The tariff for assault occasioning actual harm ranges from a suspended sentence where there is a degree of provocation and no weapon used, to 9 months imprisonment for the more serious cases of assault"

06. In Waini v State [2009] FJHC 202: HAA 006/2009(10th September 2009) Hon. Goundar J, whilst commenting on the appeal against sentence for a similar offence, canvassed the use of prior criminal record as follows:

"[13] It is settled law that a prior criminal record does not have the effect of aggravation an offence, but it may deprive an offender of leniency or indicate more weight is to be given to retribution, personal deterrence and the protection of the community (Tuisavusavu & Savou v Sate Criminal Appeal No:AAU0064 of 2004s)"

07. The accused is 31 years of age. When arrested he co-operated with the police and made confession in his Record of Interview. He supports his family as a subsistence farmer. He looks after complainant's children. He had successfully under gone counseling at All Nation Church, Suva.

08. I have carefully considered these submissions in light of the provisions of the Sentencing and Penalties Decree No: 42 of 2009 especially those of the section set out below in order to determine the appropriate sentence.

09. Section 15(3) of the Sentencing Decree provides that:

"as a general principle of sentencing, a court may not impose a more serious sentence unless it is satisfied that a lesser or alternative sentence will not meet the objectives of sentencing stated in Section 4, and sentence of imprisonment should be regarded as the sanction of last resort taking into account all matters stated in the General Sentencing Provisions of the decree".

10. The objectives of sentencing, as found in section 4(1) of the Decree, are as follows:

1. To punish offenders to an extent and a manner, which is just in all the circumstances;
2. To protect the community from offenders;
3. To deter offenders or other persons from committing offences of the same or similar nature;
4. To establish conditions so that rehabilitation of offenders may be promoted or facilitated;
5. To signify that the court and the community denounce the commission of such offences; or
6. Any combination of these purposes.
   

11. Section 4(2) of the Decree further provides that in sentencing offenders, a Court must have regarded to:

(a) The maximum penalty prescribed for the offence;

(b) Current sentencing practice and the terms of any applicable and guideline Judgments;

(c) The nature and gravity of the particular offence;

(d) The defender's culpability and degree of responsibly for the offence;

(e) The impact of the offence on any victim of the offence and the injury, loss or damage resulting from the offence;

(f) Whether the offender pleaded guilty to the offence, and if so, the stage in the proceedings at which the offender did so or indicated an intention to do so;

12. Now I consider the aggravating factors:

1. The accused is adversely recorded with a total of 13 previous convictions of which 11 are valid pursuant to the Rehabilitation of offenders Act 1997.
2. The accused was intoxicated at the time of offending.
3. The accused was the de facto partner of the victim and was in a position of trust.
4. The victim sustained injuries to her head and was vulnerable at the time of the offending.
   
13. Now I consider the mitigating circumstances:
    

(a) The accused pleaded guilty before the commencement of the trial.

(b) Accused is 31 years old and has been in a de facto relationship with the complainant for 4 years.

(d) He co-operated with the Police and made confession in his record of interview.

(e) He supports his family as a subsistence farmer.

(f) He looks after two children of the complainant and;

(e) He is remorseful.

14. Considering all aggravated and mitigating circumstances I impose 12 months imprisonment suspended for three years. Suspended sentence explained.

15. 30 days to appeal.

P.Kumararatnam

JUDGE

At Suva

27th March, 2012