State v Waqalevu [2012] FJMC 174; Criminal Case 116.2012 (26 July 2012)

IN THE MAGISTRATE'S COURT OF THE FIJI ISLANDS
AT SUVA

CRIMINAL CASE NO: 116/2012

THE STATE

V

JONE WAQALEVU

Prosecution:- Cpl Reddy, Police Prosecutor.
Accused:-Mr. Vakaloloma.

SENTENCE

1. Jone Waqalevu, you were charged with the following offence:
   

Statement of Offence

Act With Intent to Cause Grievous Harm: contrary to section 255(a) of the Crimes Decree No 44 of 2009.

Particulars of Offence

Jone Waqalevu, on 22nd day of January 2012 at Silimaibau place, Howell Road in the Central Division with intent to do grievous harm to Ilisapeci Soko unlawfully wounded the said Ilisapeci Soko with a knife.

2. The High Court of Fiji extended its jurisdiction to this Court pursuant to section 4(2) of the Criminal Procedure Decree 2009 to determine this matter.
   
3. On 25.06.2012 you informed on willingness to change your early plea of 'Not Guilty' which was entered on 27.02.2012.
   
4. On the following day you pleaded guilty before this Court. The Court is satisfied that your plea is free from any influence. Thus you are convicted as charged.
   
5. Following facts are established in the Summery of Facts presented by the prosecution. The victim of this case has been your wife. She shared thirty years of marital relationship with you. She was 50 years old and brought-up five children. At the time of the incident she lived in the same compound with you in Howell road.
   
6. Both you and the victim were not in talking terms for about three weeks prior to the incident. You occupied a room down stairs alone.
   
7. The incident occurred at around 4 am. You walked in to her room and woke up to ask if she has any other relationship with another. She refused to talk to you. But you kept on insisting her to answer whether she loves you.
   
8. Thereafter you asked your son who was sleeping with the victim to vacate the room. When your son went out from the room, the victim too tried to follow him to the daughter's room. You went after her and asked again the reason behind getting a restraining order against him. She did not answer your series of questions.
   
9. You went down stairs to bring a kitchen knife from the washing sink which was outside the house. You hid it inside the laundry basket upstairs and approached the victim to ask again. She did not reply. When you tried to get the knife the victim came behind appealing to forgive her. You brought the knife out.
   
10. Having seen the weapon she tried to escape but the attempt failed. You struck her from back. You assaulted in front of her niece. Somehow she fled out to the neighbours to call the police.
    
11. When the police arrived at the scene the victim found lying beside the back door of the house with bleeding injuries. The injuries were tied up to prevent further bleeding. It appears that this was done by you. Later she was admitted to CWM hospital to undergo a series of emergency operations. Her life was survived due the intensive medical attention.
    
12. You were later arrested by the police and you have admitted the offence in your interview under caution. You further mentioned that you were tired of being to Court with her since 2011.
    
13. You admitted above summery of facts.
    
14. The state has produced the medical report of the victim as a part of the Summery of Facts. However the Court called for a further report from the medical officer as the initial medical report was incomplete. Dr. Leone Vadeni, Orthopaedic Registrar for the Consultant Orthopaedic Surgeon of CWM hospital forwarded a letter dated 06.07.2012 which gives clarity to the earlier report.
    
15. According to the medical report she was admitted to the hospital with multiple injuries to arms, face and scalp. She has suffered with,
    
    1. Multiple open fractures to both forearms;
       
    2. Multiple open fractures to various fingers;
       
    100. Open fractures to her skull;
         
    4. Multiple blunt traumas to face and various parts of body.
       
16. She has undergone a series of surgical operations to clean and close open wounds as well as internal fixation for some of her fractures. She has received inpatient treatments for a half a month at CWM. Further she has reported dizziness on standing up during her follow-up clinics.
    
17. Section 255(a) of the Crimes Decree 2009 states that any person who is with intent to cause grievous harm, unlawfully wounds or does grievous harm to anyone by whatever means is guilty for the offence and is liable to imprisonment for life.
    
18. The maximum sentence of the offence indicates the seriousness of the offence for which the accused has been found guilty now.
    

Tariff for the Offence

19. Hon. Justice Shameem in State v Annamallay [2005] FJHC; HAC 004 of 2004 held that the tariff sentence ranges from suspended sentence where there are no or minimal injuries and where the parties have resolved their differences to 2½ years imprisonment where there was serious injury and the use of weapon was involved.
    

In State v Viliame Cavubati [2002C; HAA 080 of 2001S the Court observed that:

'An offence of act with intent to cause grievous harm isrious one which must almost always result in an immediate custodial sentence....The cases bses brought to my attention seem to bear that proposition out however given that the maximum term of imprisonment is life imprisonment, this "range" would now appear in 2010 to be rather lenient. By using such a lethal weapon, this offence should only ever attract a suspended sentence in the rarest, circumstances and sentences of up to 4 or 5 years could easily be justified.

20. In State v. Tuigulagula (2011) FJHC 163 Hon. Justice Madigan considered that the prolonged attack of several blows on the victim was an aggravating factor. In this case the accused had been the husband of the victim. The starting point for the sentence of this case was five years. The court saw fit to sentence him to 6 years imprisonment and fixed a parole of four years.
    
21. In determining the appropriate starting point of the sentence, this Court has considered the need for deterrence against persons who may be similarly inclined to commit this offence.
    
22. I have also considered the apparent ease with which accused persons seem to think that taking the law into their own hands is the way to settle their grievances.
    
23. Having considered the judgement of State v. Tuigulagua I take 4 ½ years imprisonment as the starting point for this offence.
    

Aggravating Factors

24. The aggravating features of the offence are,
    
    1. The victim had been the wife of the accused. She was 50 years old. The victim was vulnerable as she was with another female relative at the time of the incident;
       
    2. It appears that there was no provocation on the part of the victim, she has only remained silent during the questioning of the accused;
       
    3. You have used a knife to assault the victim. You in fact went downstairs to bring it from outside sink;
       
    4. Multiple open fractures and other injuries indicate that you have assaulted her many times.
       
25. I increase your the sentence by another 3 ½ years to reflect above aggravating factors. Now the sentence stands at 8 years imprisonment.
    

Mitigating Factors

26. Full allowance must be given for your progressive approach towards the matter to save Court's time. A discount of 24 months is given for your early plea.
    
27. This will leave the sentence at 6 years imprisonment.
    
28. Your counsel filed extensive submissions on mitigation. You are 54 year old; sole provider of the family; co-operated with the police investigations; and you are now remorseful for what happened. I deduct further period of 6 months for your above personal circumstances. In this instance the sentence arrives at 5 years and 6 months imprisonment.
    
29. Furthermore, pursuant to section 24 of the Sentencing and Penalties Decree I reduce another 6 months for the period that you were held in remand prior to this sentence.
    
30. Now your sentence stands at 5 years.
    
31. Your previous record of violent behaviour does not afford any credit to you. Out of 3 previous convictions you have been convicted once for the offence of "Assault Occasioning Actual Bodily Harm". I am of the view that an offender of your nature cannot expect any mercy from the Court.
    
32. Jone Waqalevu, today you are sentenced to 5 years imprisonment for the offence of "Act with Intent to Cause Grievous Harm". You will serve two years of that term before being eligible for parole.
    
33. Further the Court issues a permanent domestic violence restraining order on you with standard non molestation conditions as per section 24(1)(b)(1) of the Domestic Violence Decree 2009 to ensure the wellbeing of the victim Ilisapeci Soko.
    
34. Since this Court exercising the extended jurisdiction of the High Court, you may appeal against this sentence within 30 days with leave of the Court of Appeal.
    

Pronounced in open Court,

Yohan Liyanage
Resident Magistrate

26th July 2012