State v Nagata [2022] FJHC 180; HAC180.2019 (12 April 2022)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Case No.: HAC 180 of 2019

STATE

V

ALIPATE NAGATA

Counsel : Mr. A. Singh and Mr. U. Lal for the State.

: Ms. K. Vulimainadave and Mr. R. Filipe for the Accused.

Dates of Hearing : 16, 17, 18 March, 2022
Closing Speeches : 21 March, 2022
Date of Judgment : 22 March, 2022
Date of Sentence : 12 April, 2022

SENTENCE

1. The accused was charged with one count of attempted murder contrary to section 44 (1) and 237 of the Crimes Act, one count of breach of domestic violence restraining order contrary to section 77 (1) (a) of the Domestic Violence Act, and one count of attempted serious assault contrary to section 44(1) and 277 (a) of the Crimes Act.
   
2. In a judgment delivered on 22^th March, 2022 this court acquitted the accused of the offence of attempted murder but found him guilty of the lesser offence of act intended to cause grievous harm and he was convicted accordingly.
   
3. In respect of the offences of breach of domestic violence restraining order and serious assault the accused was also found guilty and convicted accordingly.
   
4. The brief facts were as follows:
   
   1. On 8^th May, 2019, at about 5.00 am, the victim woke up to prepare breakfast for the children, at this time, the accused also woke up and asked her where she was going. The victim responded that she was going to prepare breakfast.
      
   2. A short while later, the accused and the victim were engaged in an argument while they were arguing the victim heard the children mention, “police”. The victim saw a police officer walk towards them, the victim told the police officer that he has to take her with him so that she could lodge a police complaint.
      
   100. The accused went inside the house and came out holding a hammer. When the victim saw the hammer, she was scared so she ran but did not go very far since she tripped and fell. The victim sat down and covered her face with her hands.
        
   4. The accused started to hit the victim’s hands with the hammer, she sustained injuries on her hands, fingers, head and above her eye brow. The accused had hit her about 4 to 5 times. The incident happened in front of the victim’s children.
      
   5. The police officer PC 5354 Marisio Talemaibua was trying to stop the accused by pulling the hammer away, however, the accused swung the hammer backwards to hit the police officer. The officer was short, so he ducked, and managed to grab the hammer from the accused and threw it away after it had fallen on the ground.
      
   6. The victim was later taken to the Sigatoka Hospital in a passing vehicle and then to the Lautoka Hospital for treatment. The victim received the following injuries:
      
      1. 10 cm long open and irregular laceration seen above the left eye brow;
         
      2. 4 cm long laceration was noted on the scalp on the front;
         
      3. Right forearm was swollen and bruises were noted in the middle of the forearm;
         

4. The third middle finger on the right hand had an open fracture

and a crushed injury.

7. Furthermore, the complainant had six months before this incident, applied for a domestic violence restraining order (DVRO) against the accused which was granted by the Sigatoka Magistrate’s Court. The DVRO non-molestation orders were granted on 19^th February, 2019, by assaulting the victim the accused breached the domestic violence restraining order.
   
8. Upon investigation by the police the accused was arrested, and charged.

5. Both counsel filed sentence submissions, victim impact statement and mitigation for which this court is grateful.
   
6. The counsel for the accused presented the following mitigation and personal details about the accused:
   
   1. The accused is 44 years of age;
   2. Was a night club bouncer;
   100. Has four children;
   4. Cooperated with the police during investigation.

AGGRAVATING FACTORS

7. The following aggravating factors are obvious:

1. Breach of Trust

The victim and the accused are wife and husband. The accused grossly breached the trust of the victim by his actions. The attack on the victim was unprovoked.

2. Victim was vulnerable

The victim was vulnerable, defenceless, and helpless. She had tripped and fallen. The accused did not show any mercy towards her and continued assaulting her despite her plea to stop. The victim was assaulted in front of her children.

100. Accused was undeterred
     

The accused was undeterred in what he was doing. The police officer had also tried to stop and calm the accused but he continued assaulting the victim.

4. Victim Impact Statement
   

In the victim impact statement the victim stated that after the incident she had many sleepless nights, is unable to bear loud voice or rowdy behaviour. The children are also affected by what they had seen on that day they shiver if they hear yelling or shouting.

TARIFF

8. The maximum penalty for the offence of act intended to cause grievous harm is life imprisonment. The accepted tariff for this offence is between 2 years to 5 years imprisonment depending on the nature of the weapon used. Moreover, the more serious and permanent the injuries, the higher the sentence should be (see State v Mokubula [2003] FJHC 164: HAA 0052 of 2003 (23 December, 2013).
9. The maximum penalty for breach of domestic violence restraining order is a fine of $1,000 and a term of imprisonment of 12 months for first offence.
10. The maximum penalty for serious assault is 5 years imprisonment. In accordance with section 44 (1) of the Crimes Act a person convicted of attempt to commit an offence is punishable as if the offence attempted had been committed.

11. Section 17 of the Sentencing and Penalties Act states:

“If an offender is convicted of more than one offence founded on the same facts, or which form a series of offences of the same or a similar character, the court may impose an aggregate sentence of imprisonment in respect of those offences that does not exceed the total effective period of imprisonment that could be imposed if the court had imposed a separate term of imprisonment for each of them.”

12. I am satisfied that the three offences for which the accused stands convicted are offences founded on the same facts and are of similar character. Therefore taking into account section 17 of the Sentencing and Penalties Act I prefer to impose an aggregate sentence of imprisonment for the three offences.
    
13. Considering the objective seriousness of the offences committed I take 2 years imprisonment (lower end of the scale) as the starting point of the aggregate sentence. The sentence is increased for the aggravating factors. I note that the accused has three active previous convictions for assault occasioning actual bodily harm.
    
14. In view of the above the accused does not receive any reduction for good character, but for the mitigation advanced by the accused the sentence is reduced. The head sentence is 4 years imprisonment.
    
15. As per the court file the accused was remanded for 2 years and 3 months and 10 days. In accordance with section 24 of the Sentencing and Penalties Act the sentence is reduced as a period of imprisonment already served. The final aggregate sentence is 1 year, 8 months and 20 days imprisonment.
    
16. Considering the circumstances of the offending, and the level of the accused culpability (unprovoked attack) particularly the use of a hammer on a defenceless victim calls for an immediate custodial sentence. When a person uses a weapon on another he or she should be prepared to face severe consequences by way of an immediate custodial sentence.
    
17. Having considered section 4 (1) of the Sentencing and Penalties Act and the serious nature of the offence committed on the victim compels me to state that the purpose of this sentence is to punish offenders to an extent and in a manner which is just in all the circumstances of the case and to deter offenders and other persons from committing offences of the same or similar nature.
    
18. In exercise of my discretion under section 18 (3) of the Sentencing and Penalties Act (as amended) I do not wish to impose a non-parole period. A non-parole period will not assist in the rehabilitation of the accused.
    
19. Mr. Nagata you have committed a serious offence on the victim who is your wife. The injuries suffered by the victim are serious particularly the open facture and crushed injury in the right hand middle finger. The circumstances of the offending in particular hitting an unarmed person with a hammer who had fallen on the ground is a dangerous act.
    
20. You had no mercy for the victim who was asking you to stop hitting her. I understand and accept that you have a young family to look after but you should have thought about your family before committing such a serious offence.
    
21. You had no second thoughts about what you were doing you were determined to cause the victim grievous harm which you succeeded hence you do not deserve any mercy from this court. This was a domestic violence case which could have gone out of hand had the police officer on duty not intervened to stop the accused.
    
22. I am satisfied that the term of 1 year, 8 months and 20 days imprisonment does not exceed the total effective period of imprisonment that could be imposed if the court had imposed a separate term of imprisonment for each offence.
    
23. In summary I pass an aggregate sentence of 1 year, 8 months and 20 days imprisonment (after deducting your remand period of 2 years and 3 months and 10 days) without a non-parole period. In addition to this, the accused is fined the sum of $100.00 in default one month imprisonment for breach of domestic violence order. I refuse to consider suspension of the final sentence considering the domestic relationship that exists between the parties and the circumstances of the offending.
    
24. Due to the closeness of the relationship between the accused and the victim a permanent non-molestation and non-contact orders are issued to protect the victim (including the children in the care of the victim) under the Domestic Violence Act. It is also recommended that the Commissioner of Correction Services facilitate Anger Management Course for the accused.
    
25. The accused is at liberty to apply for the relaxation of the domestic violence restraining orders upon release from the Corrections Centre.

26. 30 days to appeal to the Court of Appeal.

Sunil Sharma

Judge

At Lautoka
12 April, 2022

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