State v Vuli [2014] FJHC 36; HAC121.2012S (6 February 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 121 OF 2012S

STATE

vs

JOFILITI TALE BULABALAVU VULI

Counsels : Ms. M. Fong for State
Ms. L. Raisua for Accused
Hearing : 3 February, 2014
Sentencing : 6 February, 2014

SENTENCE

1. On 3 February 2014, in the presence of his counsel, the accused pleaded guilty to the following offence:
   

Statement of Offence

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

Particulars of Offence

JOFILITI TALE BULABALAVU VULI on the 26 day of March 2012 at Suva in the Central Division, with intent to cause grievous harm to Sunil Dutt Maharaj, unlawfully wounded the said Sunil Dutt Maharaj with an axe.

2. The prosecution read the following summary of facts:
   

"...The accused is one Jofiliti Tale Bulabalavu Vuli ("the Accused"), 51 years old at the time of the offending.

The victim is one Sunil Dutt Maharaj ("the victim"), 48 years old at the time of the offending.

Both accused and victim resided together at Lot 17 Cheng Place in Raiwai. They were also co-workers for Pride Security in Suva.

On the 26 of March 2012, at about 6pm, the accused was resting at their residence when the victim returned home from work. The accused then started questioning the victim about his telling their boss that he, the accused, had been leaving the work-site to drink grog.

A verbal argument developed between them, which quickly led to the accused going on to physically assault the victim by punching him in the face somewhere between 6 – 10 times. The victim fled the scene and the accused took an axe normally kept in their residence and chased the victim outside with it.

The victim fell near their front gate, whereupon the accused caught up with him and struck at him with the axe towards his head. The accused struck the victim and unlawfully wounded him with the said axe. The victim managed to stand and escape again, whereby he was assisted by neighbours into a taxi and to CWM Hospital.

The victim was medically examined and admitted into hospital. The following injuries were recorded in the standard police medical report form:

- Scalp laceration on the temporal and occipital region

- Back laceration on right shoulder near scapular.

Police attended to the scene and arrested the accused from his home. He was caution interviewed by police whereupon he admitted to attacking and wounding the victim with the axe.

He was then charged..."

3. The complainant's medical report was tendered as evidence.
   
4. The court checked with defence counsel to see that the accused was admitting all the elements of the offence. On behalf of her client, defence counsel said that, the accused admitted the above prosecution's summary of facts. He admitted that, at the time he wounded the complainant with an axe, he had the intent to cause grievous harm to him. On the basis of the accused admitting the above, the court found him guilty as charged and convicted him accordingly.
   
5. In the last 10 years, the accused had a previous conviction of "damaging property", wherein he was sentenced to 9 months imprisonment. The prosecution submitted no antecedent report, but a victim impact report. A copy was given to the defence, and they did not challenge the same.
   
6. The court heard a plea in mitigation from the accused, as his counsel was not ready to proceed with the same. He said, he was 52 years old, single with no children. He had been remanded in custody since 29 March 2012, that is, 1 year 10 months 8 days. He said, he reached Form 6 level education. He was working as a security guard with the complainant. He said, he brought the complainant to his flat as he was homeless. He looks after the complainant. According to him, the complainant later became a nuisance to him, when he stole his properties and started misbehaving. At the material time, they quarreled and he committed the offence.
   
7. The offence of "act with intent to cause grievous harm", contrary to section 255 (a) of the Crimes Decree 2009, carries a maximum penalty of life imprisonment. The tariff for this offence was set by Her Ladyship Madam Justice Nazhat Shameem, when considering the same offence, in the repealed Penal Code, in State v Maba Mokubula, Criminal Appeal No. HAA 0052 of 2003S, High Court, Suva. The tariff was a sentence between 6 months to 5 years imprisonment. Her Ladyship said, ":...In a case of an attack by a weapon, the starting point should range from 2 years imprisonment to 5 years, depending on the nature of the weapon..."
   
8. In State vs Emosi Taku Tuigulagula, Criminal Case No. HAC 081 of 2010, High Court, Lautoka, His Lordship Mr Justice Paul Madigan accepted Her Ladyship Madam Justice Shameem's above statements. His Lordship was faced with a serious domestic violence case, where the husband severely injured his wife with a cane knife attack. She lost both palms with only the thumbs attached. She also suffered injuries to the head and back. Justice Madigan sentence the man to 6 years imprisonment, with a non-parole period of 4 years. In State v Seremaia Nalulu and Others, Criminal Case No. HAC 155 of 2010, High Court, Lautoka, Justice Madigan said, higher sentences ought to be passed, if the circumstances justify it. I accept the above authorities.
   
9. In this case, the aggravating factors were as follows:
   
   • (i) This was an attack on a person using a weapon, that is, an axe. An axe is used to chop down trees and woods. It was not designed to be used on a person. By using an axe to assault the complainant, whatever the perceived provocation, is simply not justified, and a severe aggravating factor.
     
   • (ii) The complainant suffered severe axe injuries to the head and right back shoulder, as shown in his medical report. He was hospitalized for 7 days. He suffers from fear and pain, as of today.
     
   • (iii) By committing the offence, the accused showed utter disregard to the complainant's right not to be unlawfully attacked and his sense of well-being.
     
10. The mitigating factors were as follows:
    
    • (i) The accused pleaded guilty, although this was approximately 1 year 10 months after the first call in the High Court.
      
    • (ii) He had been remanded in custody for approximately 1 year 10 months 8 days.
      
11. I start with a sentence of 5 years imprisonment. I add 3 years for the aggravating factors, making a total of 8 years imprisonment. I reduce the same by 4 years for the mitigating factors, leaving a balance of 4 years imprisonment.
    
12. In summary, I sentence you, Jofiliti Tale Bulabalavu Vuli to 4 years imprisonment, with a non-parole period of 3 years imprisonment, effective forthwith.
    

Salesi Temo
JUDGE

Solicitor for State : Office of the Director of Public Prosecutions, Suva.
Solicitor for Accused : Legal Aid Commission, Suva.