IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal Case No: HAA 027 of 2008

BETWEEN:

JONETANI SEREKA
Appellant

AND:

THE STATE
Respondent

Counsel: Apellant in Person
Ms. A. Tuiteci for the State

Date of Hearing: riday 11th April, 2008
Date of Judgment: Fiday 25th April, 2008

JUDGMENT

[1]	The appellant was charged with the following offences:

FIRST COUNT

Statement of Offence (a)

ASSAULT OCCASIONING ACTUAL BODILY HARM: Contrary to Section 245 of the Penal Code Act 17.

Particulars of Offence (b)

Jonetani Sereka, on the 15th day of December 2007, at Nasinu in the Central Division assaulted Ratu Sailosi Makoto thereby occasioning him actual bodily harm.

SECOND COUNT

Statement of offence (a)

DAMAGING PROPERTY: Contrary to Section 324 (1) of the Penal Code Act 17.

Particulars of Offence (b)

Jonetani Sereka, on the 15th day of December 2007, at Nasinu in the Central Division, willfully and unlawfully damaged 2 pairs of louver blades valued at $12.00 and 2 pairs of louver frames valued at $32.00, the property of Vauliasi Ratuyala.

[3]	On 17th January 2008, he pleaded guilty to the charges after waiving his right to legal representation.

[4]	The facts were that on 15th December 2007, the first complainant was at the second complainant’s house. The appellant went to the house drunk and confronted the first complainant. An argument developed between the appellant and the first complainant. The appellant punched the first complainant on the face. He then got hold of a pipe and smashed the windows of the house. The first complainant sustained multiple bruises on nose and cuts on tongue. 

[5]	In mitigation, the appellant said he was 37 years old, single and unemployed. The appellant said he assaulted the first complainant because he had been spreading false rumours about him. The appellant said he was remorseful and tried to reconcile with the complainant but the complainant refused to reconcile.

[6]	On 5th February 2008, the appellant was sentenced to 9 months imprisonment for assault occasioning actual bodily harm and 3 months for damaging property.

[7]	The sentences were made to run consecutively; thereby making a total effective sentence of 12 months imprisonment.

[8]	The appellant appeals against the severity of the sentence.

[9]	The tariff for assault occasioning actual bodily harm ranges from a suspended sentence where there is a degree of provocation and no weapon used, to 9 months imprisonment for the more serious cases of assault (State v Anjula Devi, Criminal Case No. 04 of 1998 Lab.).

[10]	In Elizabeth Joseph v State Criminal Appeal HAA030 of 2004S, the accused stabbed her partner’s wife with a pen knife. The victim received a cut on the finger. A sentence of 4 months imprisonment was upheld on appeal. 

[11]	In her sentencing remarks the learned Magistrate identified the correct tariff. She also correctly identified the relevant mitigating and aggravating factors except that she also considered the appellant’s long list of previous convictions as an aggravating factor to enhance the sentence. This was plainly wrong.

[12]	Previous convictions should not be used as an aggravating factor to increase sentence. The relevance of previous convictions of an offender to the sentencing process is that the offender is not entitled to any credit for good character that a first time offender generally is entitled to (Lasaro Tikomainiusiladi v the State Criminal Appeal No. HAA134 of 2007).

[13]	In Emirami Saurara v the State Criminal Appeal CAV0020/07 (26 February 2008), the Supreme Court said:

In our opinion it is wrong in principle to treat convictions for prior offences as aggravating circumstances attaching to a subsequent offence for the purposes of sentencing. An offender who has a significant record of prior offences is obviously unable to claim the benefit of mitigation on account of previous good character or relatively minor criminal record. When considering the deterrent element of punishment necessarily involved in sentencing, the fact that a person has been convicted and sentenced previously for a number of offences similar to that under consideration by the sentencing court, may support a higher penalty in the current sentence by way of a more effective deterrent.

[14]	In the circumstances, I am of the view that the learned Magistrate erred in considering the appellant’s previous convictions as an aggravating factor to enhance the sentence.

[15]	The aggravating factors were the injuries sustained by the first complainant, the damage done to the second complainant’s house, and the intoxication state of the appellant. The mitigating factors were the early guilty plea, remorse, and the willingness to reconcile.

[16]	After taking into account the mitigating and aggravating factors, a sentence of 6 months imprisonment was appropriate.

[17]	The term of 3 months imprisonment for damaging property is within the tariff for that offence. However, the two offences were part of one transaction. Under the principle of one transaction rule, the sentences should have been made to serve concurrently. The learned Magistrate erred in making the sentences consecutive to each other.

[18]	For these reasons, the appeal must be allowed. The sentence for assault occasioning actual bodily harm is reduced to 6 months imprisonment. The sentence of 3 months imprisonment for damaging property is to be served concurrently with the sentence of 6 months for assault occasioning actual bodily harm. The overall sentence is 6 months imprisonment.

Result

[19]	Appeal allowed.

Daniel Goundar
JUDGE

At Suva
Friday 25th April, 2008

Solicitors:
Appellant in Person
Office of the Director of Public Prosecutions, Suva for the State