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State v Sikitora [2010] FJHC 466; HAC067.2010L (22 October 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 67 OF 2010L

STATE

V

KOLINIO SIKITORA

Mr. L. Sovau and Ms Vateitei for the State
Accused in Person

Date of Hearing: 7 & 20 October 2010
Date of Sentence: 22 October 2010

SENTENCE

[1] The accused was originally charged with Act with Intent to cause Grievous Bodily Harm, contrary to section 255(a) of the Crimes Decree 2009. The charge on the information reads as follows:

Statement of Offence

ACT WITH INTENT TO CAUSE GRIEVOUS BODILY HARM: Contrary to section 255(a) of the Crimes Decree Number 44 of 2009.

Particulars of Offence

KOLINIO SIKITORA on the 14th day of March, 2010 at Nadi in the Western Division with intent to do some grievous harm to SERUWAIA CIRIKIBUYA unlawfully wounded the said SERUWAIA CIRIKIBUYA with a hose pipe.

[2] To this offence, he pleaded guilty in the Magistrates Court and on the 27th September 2010, he confirmed that plea of guilty in this Court, a plea which he stated to be entirely voluntary and considered.

[3] A set of facts was put to the accused, who said he understood the facts and admitted them all. The Court being of the view that the facts did not support the charge laid, acquitted him of that charge however pursuant to section 160(2) of the Criminal Procedure Decree 2009 he was convicted of the lesser offence of an assault occasioning actual bodily harm ("aoabh") contrary to section 275 of the Crimes Decree.

Offences Against the Person

[4] The Crimes Decree provides for a range of offences to cater for assaults in varying degrees. They are, in declining order of severity:

(a) Act with intent to cause grievous harm (section 255).

(b) Causing grievous harm (section 258).

(c) Unlawful wounding (section 261).

(d) Assault occasioning actual bodily harm (section 275).

(e) Common assault (section 274).

(f) Negligent act causing harm (section 269).

[5] Obviously the circumstances and facts of each case will determine which charge is laid by the prosecution. The terms "grievous harm" and "harm" are defined in the Crimes Decree (section 4) – "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.

"harm" means any bodily hurt, disease or disorder whether permanent or temporary."

[6] The facts were that the accused's wife was ill and he had told his 19 year old daughter, the victim in this case to stay home and look after her. This she did not do and she remained at her own place of work. The accused fetched her and took her home where he hit her thighs with a hose pipe. He then sat her down and shaved all the hair from her head. If that was not enough, he then made her carry a 20 litre Flagon filed with water around the house saying "I will not tell lies to my father again".

[7] It is quite apparent that hitting of another's legs with a hose pipe is not an intent to cause grievous bodily harm, unless the actus reus is of such a violent nature that there might be an attempt to break bones. There is no such evidence in the factual basis in this case. However, it has been held in DPP v Smith [2006] 2 Cr. App. R., that cutting of another's hair can amount to "bodily harm" and therefore this assault should have definitely been charged under section 275 of the Crimes Decree 2009.

[8] The framing of relevant charges is a fine art and they should be revisited time and again to check that they appropriately reflect the factual situation. If, as I suspect happened here, the Police draft the initial charge when the suspect is taken to the Magistrate's Court, then it is a duty of the State Counsel to review that charge before the information is filed in this Court.

[9] In mitigation, the accused handed up a handwritten letter to the Court in which he stressed his early plea of guilty, his deep remorse, and offering an apology to his daughter. He is 53 years old and a first offender. His incarceration has wreaked havoc on the family's financial future. His four months spent in custody on remand has reinforced his desire to lead a law abiding life, and to be a responsible parent. He previously worked as a security officer in Nadi and has 3 children and a wife.

[10] The victim gave sworn testimony in Court to say that she has forgiven her father, and that they are reconciled.

[11] The State was invited to make submissions on sentence, but failed to do so.

[12] There are no precedents for this offence enacted under the Crimes Decree 2009, however the terms of the offence are the same as the old Penal Code offence under section 245 and the maximum penalty remains the same at five years. The cases decided under the Penal Code offence of assault occasioning actual bodily harm are therefore apposite.

[13] The cases of Elizabeth Joseph v State [2004] HAA 03 of 2004 and State v Tevita Alati [2004] HAA 73 of 2004 establish a tariff of 9 months to 12 months imprisonment, the severity of the wound being the determining factor in the starting point. However sentences of 18 months imprisonment have been upheld in domestic violence cases (Amasi Korovata v State [2006] HA 115 of 2006].

[14] The offence committed here is very serious indeed. The daughter was humiliated, rather badly beaten and had her head hair removed, which to a girl of 19 years old must have been devastating. The total abuse occasioned to her on the 14th March 2010 was undignified. However despite the abuse and the severity of it, regard must be had firstly to the evident frustration of the father wanting to raise his daughter to be responsible and truthful and secondly to the rights of the accused as a parent to punish.

Whilst the Courts will never condone unnecessary and gratuitous violence to a child within the domestic environment, some recognition must be afforded to a parent to correct what he or she perceives to be wayward behaviour.

[15] To reflect the indignity occasioned to the girl by removing her hair and for the unnecessary beating with a hose, I take as a starting point a term of 9 months imprisonment. For the added humiliation of having to carry a heavy water cooler around the house, I add a further 3 months, making an interim total of 12 months imprisonment. For the accused's powerful mitigation including his time spent in custody, and his plea of guilty at a very early stage of proceedings I deduct 6 months making a term of imprisonment of 6 months.

[16] Considering the evidence of the daughter that all is forgiven and reconciled and in view of the accused's very persuasive letter of remorse and apology, I consider this an appropriate case to suspend the sentence.

[17] Pursuant to section 26 of the Sentencing and Penalties Decree, 2009, I suspend the 6 month sentence for a period of 18 months.

[18] The effect of a suspended sentence is explained in Court to the unrepresented accused.

[19] The accused has 30 days to appeal to the Fiji Court of Appeal.

Paul K. Madigan
Judge

At Lautoka
22 October 2010