State v Bokini [2016] FJMC 3; Criminal Case 2083.2014 (8 January 2016)

IN THE MAGISTRATES’ COURT OF FIJI
AT SUVA

Criminal Case No: - 2083/2014

STATE

v

OLIVI BOKINI

For the Prosecution: PC Josuha
For the Accused: Ms. Mishra (LAC)

Date of Sentence: 08th of January 2016

SENTENCE

1. The accused is charged in this Court with one count of Act with Intend to cause Grievous Harm contrary to section 255(b) of the Crimes Decree No 44 of 2009.
   
2. The High Court gave the extended jurisdiction to hear this case to me and the accused initially pleaded not guilty. When this was called to fix a hearing date through the counsel the accused informed that he wanted to change the plea.
   
3. Therefore on 18th November 2015 the charge was read and the accused pleaded guilty and admitted following summary of facts:
   
   • On the 14/09/2014 between 7.00pm and 8pm Vilisoni Tuiketei [A-1], 29 yrs, Carpenter of Waila 3B was looking for his wife namely Mirikilagi Sereima.
     
   • [A-1] came looking along Fletcher Road and found his wife accompanied by Olievi Bokini, [B-1] 26 yrs, Security of Wailea Settlement walking along Wailea Street drunk.
     
   • [A-1] was frustrated about what he saw got off the taxi and pushed [B-1] they then strated a first fight along Wailea Street and then passerby shouted then they stopped.
     
   • [A-1] then boarded a taxi and went to Flagstaff to buy some BBQ and they headed to Korova Settlement which is located along Queen Elizabeth Drive behind the School of Maritime Studies.
     
   • [A-1] then got off the taxi along Queen Elizabeth Drive to proceed to Korova Settlement when [B-1] got off in another taxi along Queen Elizabeth Drive and started swearing at [A-1]
     
   • When [A-1] moved towards [B-1] he saw him holding something in his hand and could not make out what he was holding, [B-1] then swing what he held in his hand and it landed on [A-2]’s right thigh injuring him, he then ran away.
     
   • [A-1] ran for a while and fell down because of the injuries he sustained on his right thigh, he saw [B-1] came towards him and then took out a Silver object and looked like a Chopper from inside his pants.
     
   • [B-1] then swung the Chopper to hit [A-1] on his head, [A-1] then lifted up his left hand and the chopper landed on his forearm injuring it.
     
   • [B-1] made several attempts to stab [A-1] but he managed to save himself by evading all the stabs from [B-1]. One of the stabs landed on [A-1]’s head and he managed to push [B-1] away.
     
   • [B-1] then boarded the taxi that they came in, which was waiting for him while [B-1] was stabbing [A-1], they drove away with [B-1]’s wife leaving [A-1] behind.
     
   • [A-1] was later rushed to CWM Hospital by one Sakiusa Cabe [A-2], 30yrs USP Student of Korova Settlement who was at the junction of Korova Settlement and witnessed what was happening but could not come to [A-1]’s assistance since he was terrified about what was eventuated in front of him.
     
   • [A-1] was then admitted in CWM Hospital for 5 days because of the injuries he sustained and was shocked of what had happened to him.
     
   • Several attempts in locating [B-1] proved futile but he was apprehended on 08/12/14 by D/Cpl 2660 Apisai [A-3] after several enquiries.
     
   • [B-1] was interviewed under caution by DC3090 Akuila Debalevu [A-4] in which he could not recall what happened, that particular night since he stated he did not sleep for about 2 days and he was heavily intoxicated with alcohol and could not recall anything, ref. to Q & A 39-52.
     
   • PC4426 Peni Bose [A-5] formally charged [B-2] with one count of Act Intended to Cause Grievous Harm contrary to Section 255(b) of the Crimes Decree no. 44 of 2009.
     
   • [B-2] will be appearing in court today 09/12/14.
     
4. I am satisfied about the plea and convict the accused for this charge.
   

The Law and the Tariff

5. The maximum sentence for Act withIntent to Cause Grievous Injuries is life imprisonment.
   
6. In State v Drelinavai [2014] FJHC 309 his Lordship Justice Madigan said :
   

“The maximum penalty for this offence is life imprisonment. Various cases, but in particular Maba Mokubula HAA0052of 2003, have held that the tariff for the offence must be from 2 years to 5 years imprisonment, and more in a domestic violence context.

In the Mokubula case, Shameem J. analysed several cases from the High Court and the Court of Appeal and concluded that in an attack by a weapon, the starting point should range between 2 years and 5 years, depending on the weapon used. She added that a suspended sentence in not appropriate.

Although Shameem J. was considering an appeal of sentence for the identical offence under the Penal Code, the new offence under the Crimes Decree has the same maximum penalty and this Court does now confirm that the tariff is a term of immediate imprisonment from 2 to 5 years, and the nature and danger of the weapon used along with the injuries inflicted will be the determinants of where in that range the starting point is taken."

Aggravating Factors

7. The following are considered as aggravating factors:
   
   1. The accused used a chopper;
      
   2. He stabbed the victim in his head which is a vulnerable place in the body;
      
   100. The accuse was drunk at that time;
        
   4. He keep assaulting the victim.
      

Mitigating Factors

8. The learned counsel from the legal aid filed a written mitigating submission and from that I consider the following:
   
   1. Married with children;
      
   2. Remorseful of his behavior.
      
9. After considering the gravity of the offending, I select 02 years as my stating point and add 03 years for the aggravating factors to reach 05 years. For the limited mitigating factors I deduct 01 year and pleading guilty and saving the court resources I further deduct 01 year to reach 03 years imprisonment.
   
10. Even though the accused said the complainant assaulted him first admitted summary of facts shows that the accused swore at him and attacked him with a chopper injuring his right thigh. Even after the complainant fell down he tried to stab him with the chopper injuring his head and other places in the body. Therefore a custodial sentence is warranted to denounce the behavior of the accused on that night.
    
11. Accordingly I sentenced the accused to 03 years imprisonment for the offence of Act with Intend to cause Grievous Harm with a non-parole period of 02 years.
    
12. Since the accused is absconding this sentence to be activated from the date of his apprehension.
    
13. Since this court is exercising the extended jurisdiction of the High Court case, the parties may appeal against this sentence within 30 days with leave to the Court of Appeal.
    

Shageeth Somaratne
Resident Magistrate, Suva