State v Belo [2013] FJMC 249; Criminal Case 1322.2012 (22 April 2013)

IN THE RESIDENT MAGISTRATE’S COURT AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.1322/12

STATE

-v-

SEREMAIA BELO

For the State: WPC Fisher
For the Accused: Mr. Fesaitu M. [LAC]

SENTENCE

1. SEREMAIA BELO, you have electedthe Magistrate Court and pleaded Guilty to the following Charge:
   

Grievous Harm: Contrary to Section 258 of the Crimes Decree Number 44 of 2009 and the Particulars of Offence is as follows; That;

On the 1st day of October, 2012 at Raiwaqa in the Central Division, unlawfully and maliciously did grievous harm to Isimeli Uluimoala.

2. The summary of facts of the case that was submitted by the prosecution and admitted by you is as follows;
   

“On the 01st day of October, 2012 at about 5.00pm you ware playing “tough rugby” with the victim and you have punched the victim’s face without any reason, resulting a broken jaw.”

3. I note the memorandum dated 20th November 2012 from St.Giles hospital which states that “the accused now has the basic capacity to comprehend court” Given the report, I am satisfied that your plea as unequivocal and I convict you accordingly.
   
4. I have considered the oral mitigation submission submitted by the learned counsel on your behalf including your personal background :that you are;
   

27 years old; single; was a contracted worker at University of Fiji; pleaded guilty; deeply remorseful; fully cooperated with police and attempted to reconcile with the complainant.

5. The medical examination report reveals that the victim had a“disfigured, painful jaw”.According to the information revealed by the Summary of Facts you have punched the victim without any reason, which shows lack of provocation and the high degree of violence.Thus the aggravating circumstances are significant.
   
6. Statutory Indication
   

Section 258of Crimes Decree Number 44 of 2009 reads as follows;

A person commits an indictable offence (which is triable summarily) if he or she unlawfully and maliciously does grievous harm to another person.

The offence of grievous harm are defined by section 4 of the Crimes Decree as “grievous harm” means any harm which—

(a) amounts to a maim or dangerous harm; or

(b) seriously or permanently injures health or which is likely so to injure health; or

(c) extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, member or sense;

Maximum Penalty –Imprisonment for 15 years.

7. Sentencing
   

In Sentencing you, I acknowledge and consider your early guilty plea and Mitigating Factors including your personal background.

I consider the tariff to the offence. In State v Mokubula [2003] FJHC 164; HAA0052J.2003S (23 December 2003) Hon. Justice N. Shameem stated that the tariff for Act with Intent to Cause Grievous Harm should be between two years and sixyears.On the same token I note that the maximum penalty contrary to section 224 of Penal Code is life imprisonment.

In sentencing you I consider Sentencing Guidelines under Section 4 (1) (2) (3) and General Sentencing Provisions under Section 15 of the Sentencing and Penalties Decree.

Considering all the circumstances of this case, I would pick 02 years imprisonment period as the starting point.

I increase 06 months for aggravating factors. For your early guilty plea, I deduct 01 year. I note that you have one previous conviction; therefore you are not eligible for a discount for your previous clear records. In view of migratory factors I deduct 06 months leaving a balance of 12 months imprisonment period.

You have spent 06 months in remand before the sentence. Fiji court of Appeal in: Prasad v State [2010] FJCA 12; AAU0111.2007(8 April 2010) at paragraph 6referring to Basa v The State [2006] FJCA 23:AAU0024.2005 (24 March, 2006) held;

"As a matter of sentencing principle, any period that the offender spends in custody on remand should be taken into account when calculating the sentence...although it is not necessary to make a precise calculation."

I also note that although you have granted bail on 27th March 2013 you are remanded in custody up to date as you have failed to provide with a suitable surety. In all the circumstances I find it appropriate to consider the time you spent in custody. Therefore, I reduce 6 months from your sentence. Now your imprisonment period reaches to 06 months.

Section 26 (1)of Sentencing and Penalties Decree No. 42 of 2009 provides that on sentencing an offender to a term of imprisonment a court may make an order suspending, for a period specified by the court, the whole or part of the sentence, if it is satisfied that it is appropriate to do so in the circumstances.

And now I have to decide whether the sentence is to be served in custody or not. You are remorseful and seek an opportunity to reform and rehabilitate. Pending your sentence you have spent considerable time remanded in custody.In the circumstances, I suspend your sentence.

Accordingly, I sentence you 06 months imprisonment period suspended for 02 years for the offence of Grievous Harm Contrary to section 258 of the Crimes Decree Number 44 of 2009.

Take this opportunity to rehabilitate and reform yourself so you can constructively contribute for the betterment of your family and society.

Pursuant to section 28 of the Sentencing and Penalties Decree if at any time during the operational period of a suspended sentence of imprisonment, should you commit any crime during the suspend period and found guilty by the court you are liable to be charge and prosecute for an offence punishable by imprisonment.

The State submits that the victim is your cousin and lives under the same roof and seeks a permanent Domestic Violence Decree. According to the summary of facts the attack was unprovoked. The accused and victim are related. In the circumstances', I confirm the Interim Domestic Violence restraining order on standard non molestation conditions for the wellbeing of the victim. Failure to obey these conditions amount to a criminal offence for which you may be liable to be charge and prosecute for an offence punishable by imprisonment.

28 days to appeal.

Lakshika Fernando
RESIDENT MAGISTRATE

On this 22nd day of April 2013