State v Muavesi [2012] FJMC 37; Criminal Case 40.2012 (7 March 2012)

IN THE MAGISTRATES COURT
AT NASINU

Criminal Case No. 40/12

STATE

-v-

PAULIASI MUAVESI

Sergeant Volavola for the Prosecution
The accused was present and unrepresented

SENTENCE

1. You, PAULIASI MUAVESI, are here, to be sentenced on admission of guilt on your own accord for the following offence namely:

CHARGE:

Statement of Offence [a]

First Count

ACT INTENDED TO CAUSE GRIEVOUS HARM: Contrary to Section 255 (a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence [b]

PAULIASI MUAVESI, on the 21st day of January, 2012 at Narere, Nasinu in the Central Division, with intent to cause grievous harm to PENI MUAVESI strike the said PENI MUAVESI with an axe.

This is an indictable offence; the case was transferred to the High Court. The High Court remitted the case under extended jurisdiction. Then charge were explained to you all rights were given. You pleaded guilty to the charge. . I am satisfied with your plea is unequivocal and that you understand the repercussion of your plea.

2. According to the facts, (which you have admitted), On 21.1.12 at about 3.00 pm at House No. 174, Sangam Road, Narere, Peni Muavesi, PW1, 60 years, unemployed and Adi Sova Muavesi, PW2, 60 years, unemployed who are husband and wife were at their mentioned place when Pauliasi Muavesi, accused, 42 years, unemployed the son PW1 and PW2, hit PW1 with an axe causing PW1 injuries. Accused came home drunk and took some dalo that was brought from Kadavu to cook it in the kitchen. However, PW1 did not like it and an argument took place whereby accused hit PW1 with the axe, which inflicted as shown in the medical report as per D-folio 1. Mereani Rokomasi PW3, 27 years, student the sister of accused saw accused holding the axe with two hands and hit PW1’s head in front of their house. The matter was reported to Nasinu Police Station soon after the incident accused who was drunk was arrested and locked in at Nasinu Police Station.

3. Maximum penalty could be imposed and interpretation for this offence is as follows;

“255. A person commits an indictable offence if he or she, with intent to maim, disfigure or disable any person, or to do some grievous harm to any person, or to resist or prevent the lawful arrest or detention of any person—

(a) unlawfully wounds or does any grievous harm to any person by any means; or

(b) unlawfully attempts in any manner to strike any person with any kind of projectile or with a spear, sword, knife, or other dangerous or offensive weapon; or

(c) unlawfully causes any explosive substance to explode; or

(d) sends or delivers any explosive substance or other dangerous or noxious thing to any person; or

(e) causes any such substance or thing to be taken or received by any person; or

(f) puts any corrosive fluid or any destructive or explosive substance in any place; or

(g) unlawfully casts or throws any such fluid or substance at or upon any person, or otherwise applies any such fluid or substance to the person of any person.

Penalty — Imprisonment for life”

4. Therefore you are liable for life imprisonment on your admission of guilt. But tariff varies gravity of offence and nature of injuries to the victim which sustained as result of grievous harm. In State v Chand (2011) FJHC 19 HAC 07 of 2011 (17 January 2011) His lordship Justice Madigan stated:

"The maximum penalty for the offence of act with intent to cause grievous harm is imprisonment for life. This is an offence relatively new to the jurisdiction, introduced by the Crimes Decree 2009 on February 1st of 2010. Until a body of sentencing authorities is secured, it is helpful to rely on the analogous section 224 of the old Penal Code, the offence of an act intended to cause grievous harm. It was established in Viliame Cavubati – HAA 80 of 2010 by Shameem J. that the accepted tariff for this offence should range from a suspended sentence through to 2 ½ years. This Court said in Amasi Korovata – HAC 11 of 2009 that the range now should extend up to 4 to 5 years."

Aggravating Factors of the offence

5. Following facts were revealed by the summary of facts placed before the court and will be considered as aggravating factors.

-injured to the father

- for no reason

6. Medical Examination form was not produced.

7- In my view, you have committed this crime with anger and intolerable impulse. Anger does not produce anything apart from the violence and peril of your life and others' lives. In general it may cause your and other peoples' life miserable. But fortunately this case has not led up to that much.

Mitigating Factors

8. In mitigation, you said You are 42 years married with 5 children You said that you have reconciled with the complainant. But complainant, your father did confirm it before court on condition that you be returned to Kadavu. But under the section 154(1) of the Criminal procedure decree this offence cannot be reconciled. Therefore reconciliation has no legal value. You promised not to reoffend. You seek leniency and forgiveness.

9. You have 43 previous convictions. It ranges from 1990 till today. But I forget over ten years convictions. Yet you have 7 previous convictions.

10. According to Para. 3, you could be sentenced life imprisonment. I pick staring point as 2 year imprisonment for this offence. For the aggravating factors I increase 6 months. For your early plea and mitigation I reduce it from 6 months. Now your sentence is 2 years imprisonment.

11. For your early plea and reconciliation I suspend it for 5 years. Nature of suspended sentence is explained. You must stay in Kadavu Islands as a condition of this sentence for 5 years, if you breached these two years suspended sentence will be activated.

12. Copy of sentence is given to the accused.

13. 28 days to appeal.

On 07th March 2012, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate