State v Sulua - Sentence [2021] FJHC 398; HAC003.2021 (17 December 2021)

IN THE HIGH COURT OF FIJI

AT SUVA

[CRIMINAL JURISDICTION]

CRIMINAL CASE NO. HAC 003 OF 2021

STATE

V

TIMOCI NAULUMATUA SULUA

Counsel: Ms S Sharma for the State

Ms M Cobona for the Accused

Date of Hearing: 16 December 2021
Date of Sentence: 17 December 2021

SENTENCE

[1] The Accused has pleaded guilty to a charge of act with intent to cause grievous harm.

[2] The victim is the de-facto partner of the Accused. The incident occurred on 25 December 2020 at their home in Lami. On this day the Accused was drinking alcohol with his relatives when he had an argument with the victim. During the argument the Accused picked up an iron rod and struck the victim several times on the hand and head. The victim ran outside their house but the Accused pursued her and punched her forehead with his fist. She ran back to their house and the Accused followed her with the iron rod in his hand. While inside the house he locked her in and swore at her. A male relative intervened and removed the Accused from the house.

[3] The matter was reported to the police the following day. The Accused was arrested and the victim was medically examined. The medical report has noted the following injuries:

1. Right facial bruising and swelling/scalp laceration.
2. Laceration on chin over the right side.
3. Difficulty opening mouth fully.
4. Scratches over posterior aspect of right elbow.
5. Scratches over anterior aspect of left forearm.
6. Scratches over anterior aspect of right knee.
7. Scratches over medial aspect of right ankle.
   

[4] In sentencing I am obliged to consider both the objective seriousness of the offence and the seriousness of the actual conduct of the Accused.

[5] In this case the offence is act with intent to cause grievous harm. The offence is categorized as domestic violence and is punishable by life imprisonment. The oe, therefore, is obje objectively serious.

[6] In State v Mokubula [2003] FJ4; HAA0052J.2003S 003S (23 December 2003) Shameem J formulahe following sentencing tariffs and guidelines for the equi equivalent offence under the Penal Code:

On the basis of thethorities, the tariff for sfor sentences under section 224 of the Penal Code is between 6 months imprisonment 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 nature of the weapon.

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.
   

[7] In State v Kailoma [2018] FJHC 763; HAC46.207 & HAC63.2017 (21 August 2018) this Court said at [16]:

Family violence must be denounced. The primary purpose of sentence is deterrence, both special and general.

[8] Recently, in State v Sen [2021] FJHC 378; HAC268.2020 (9 December 2021), the court said at [15]:

...the court’s duty is to denounce the crime of domestic violence and pass a sentence that has an effect of deterrence on the offender and others.

[9] The fact that the Accused inflicted physical violence on his partner is an aggravating factor. The violence was fueled by alcohol. The victim’s trust ras breached. A weapon was used and the duration of the attack was long. Fortunately, the injuries are not serious.

[11] In mitigation the Accused informed the court that he was provoked by his partner’s infidelity. He said that he saw the victim chatting with another male on the phone. He said that during the argument he lost control of his temper and committed the acts of violence. He said that his partner had ended their relationship and moved on to live with her new partner, leaving behind their daughter to be looked after by his elderly mother.

[12] The Accused had pleaded guilty at the first opportunity on 4 March 2021 but due to Covid lockdowns the sentence had to be postponed.

[13] The mitigating factors are the Accused’s early guilty plea and previous good character. There is some element of provocation by the victim. The Accused takes responsibility for his crime and is genuinely remorseful.

[14] After taking all these factors into account, the Accused is convicted and sentenced to 12 months imprisonment. Suspension is inappropriate due to the use of a weapon to inflict physical injuries to the victim.

[15] The final consideration is the Accused’s remand period of nearly 12 months.

[16] The remand period is commuted as sentence already served.

[17] A domestic violence restraining order with standard non-molestation condition is issued against the Accused for the protection of the victim.

. ...........................................
Hon. Mr Justice Daniel Goundar

Solicitors:
Office of the Director of Public Prosecutions for the State
Legal Aid Commission for the Accused