State v Koya [2016] FJMC 49; Criminal Case 132.2015 (21 April 2016)

IN THE MAGISTRATES’ COURT OF FIJI
AT TAVEUNI

Criminal Case No: - 132/2015
(HAC 41 /2015)

STATE

V

ABASH KOYA

For the Prosecution: Ms. Amelia Vavadakua (ODPP)
The Accused: In person.
Date of Judgment: 20th of April 2016

Date of Sentence: 21st of April 2016

SENTENCE

1. ABASH KOYA, you were found guilty and convicted after a trial to one count of Act with Intend to cause Grievous Harm contrary to section 255(a) of the Crimes Decree No 44 of 2009.
   
2. The Prosecution proved beyond reasonable doubt that on 24th July 2015 you struck the victim with a weed knife causing grievous injuries. Only defence you took was that you did not intent to cause injuries, but having considered the evidence I was satisfied about that element too.
   

The Law and the Tariff

3. The maximum sentence for Act with Intent to Cause Grievous Injuries is life imprisonment.
   
4. 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."

5. In Koroivuki v. State [2013] FJCA 15; AAU 0018.2010 (5 March 2013) his Lordship Justice Suresh Chandra said:
   

"In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this stage. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff. If the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range."

6. Considering the gravity of offending I select 02 years as the starting point for your sentence.
   

Aggravating Factors

7. The following are considered as aggravating factors:
   
   1. The accused used a weed knife for the assault ;
      
   2. You stuck his head which is a vulnerable place in the body.
      
8. For these aggravating factors I add 02 years to reach 04 years imprisonment.
   

Mitigating Factors

9. You submitted following as mitigating factors :
   
   1. Married with children;
      
   2. Facing hardship because of cyclone.
      
10. Even though you submitted these as mitigating factors I do not give much weight to them. You said your family is living in Australia with children and therefore I do not think you are looking after them. Also even though you said you were affected by Cyclone Winston there is no evidence before me about that.
    
11. But during the hearing it was showed that the complainant was making some stories about you and a woman and this argument arose because of that. Therefore there seems to be some provocation and for that I deduct 06 months to reach 3 ½ years' imprisonment.
    
12. You got 2 valid conviction and you committed this offence during the operational period of a suspend sentence. Therefore there is no discount for your past good behavior.
    
13. ABASH KOYA, you are sentenced to 3 ½ years imprisonment with a non-parole period of 02 years for the offence of Act with Intend to cause Grievous Harm contrary to section 255(a) of the Crimes Decree No 44 of 2009.
    
14. 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