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State v Kata [2012] FJHC 1474; HAC90.2012 (7 December 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 90 OF 2012

BETWEEN:

STATE

AND:

ADRIU KATA

Counsel : Ms S. Kisun for State
Mr. T. Lee for the Accused
Date of Sentence : 7 December 2012

SENTENCE

[1] The Accused above named is charged with one count of Act with Intent to Cause Grievous Harm punishable under Section 255(a) of the Crimes Decree.

[2] The Accused pleaded guilty to the charge and admitted to the summary of facts. It was revealed that the Accused and the Complainant are husband and wife. They are married for 16 years and they have 8 children and all of them are less than 12 years old. On the 17th July 2012 both of them had finished their work and returned home. On the way they collected their children at various places. Once they came back they had consumed beer. Later in the evening the Complainant got ready to go to town for clubbing and further entertainment. The Accused got angry and punched her. She fell on the ground and grabbed him. The Accused had hit her with the bottle on her head. She again stood up. The Accused pulled her to the kitchen and stabbed her with a kitchen knife. She was admitted to the hospital and treated at the ICU.

[3] When the case came before the High Court a temporary Domestic Violence Restraining Order (DVRO) was issued on the Accused. Subsequently it was made permanent.

[4] The victim who was present in Court pleaded with Court that she is unable to manage with 8 children without the financial support of the husband.

[5] The Accused was bailed out subject to DVRO and he agreed to support the wife and the children without any condition. The victim submitted to Court that they are properly maintained by the Accused and the Accused does not stay with them as per the court order but had continued visits to see the children.

[6] Both the Accused and victim underwent an extensive counseling programme and successfully completed. This programme was done under the supervision of the State counsel.

[7] According to the Counselling report the Accused had successful in managing his anger, the victim had become more responsible mother and housewife.

[8] The Accused pleaded guilty and obtained the assistance of the Counsels from Legal Aid. Legal Aid Counsel submitted a useful mitigating submission.

[9] The State Counsel had submitted a comprehensive submission regarding the sentencing.

[10] Being convinced with the plea to be unequivocal I find the Accused guilty as charged and convicted him accordingly.

Law

[11] Section 255(a) of the Crimes Decree prescribed imprisonment for life as maximum sentence.

Tariff

[12] Tariff for the offence is discussed in many cases. In State v Mokubula (2003) FJHC 164 the Court held the tariff is between 6 months to 5 years imprisonment.

[13] In Shiu Sami & Shiu Kumar v State Criminal App. AAU0007 of 1995 the Court observed that the higher side of the range is reserved for pre-planned attack that results in serious injuries for the victim.

[14] In Raj v State Cr. App No HAA 004 of 2009 (27 May 2009) the Court stressed the following points about selecting a starting point for sentence.

“As a matter of principle, starting point should be picked up from within the range. A term outside the range should only picked if exceptional or special circumstances are present”

[15] Considering all factors I commence your sentence as 2 years imprisonment.

[16] Aggravating factors.

(a) Use of kitchen knife;

(b) Offence committed in front of your small children;

(c) She received serious injuries

Considering the above aggravating factors I increase your sentence by three (3) months now you sentence is two (2) years and three (3) months.

[17] Mitigating circumstance.

(a) Your early plea;

(b) You are a first offender;

(c) You are married and having 8 small children;

(d) After the incident you continued to maintain your wife and children;

(e) It is not a preplanned act;

(f) You followed an anger management counseling programme and completed the same.

(g) Your wife, the victim pleads with the Court to show leniency;

(h) Your wife and children are happily living under one roof.

Considering all above mitigating circumstances I reduce your sentence by eighteen (18) months now your sentence is nine (9) months imprisonment.

[18] You, your counsel and your wife pleads with the Court to give you another chance in life by giving a non custodial sentence.

[19] The State Counsel submitted a very fair sentencing submission maintaining the highest tradition of the office of the Director of Public Prosecution. She analysed the facts of the case and recommends a non custodial sentence.

[20] I consider Section 4 (1) of the Sentencing & Penalties Decree. It states as follows:

“ The only purposes for which sentencing may be imposed by a court are —

(a) to punish offenders to an extent and in a manner which is just in all the circumstances;

(b) to protect the community from offenders;

(c) to deter offenders or other persons from committing offences of the same or similar nature;

(d) to establish conditions so that rehabilitation of offenders may be promoted or facilitated;

(e) to signify that the court and the community denounce the commission of such offences; or

(f) any combination of these purposes.”

[21] Considering the subsequent conduct of the Accused I wish to consider Section 15(1) (e) and 15(3) of the Sentencing & Penalties Decree.

“(e) with or without recording a conviction, make an order for community work to be undertaken in accordance with the Community Work Act 1994 or for a probation order under the Probation of Offenders Act [Cap. 22];"

"(3) As a general principle of sentencing, a court may not impose a more serious sentence unless it is satisfied that a lesser or alternative sentence will not meet the objectives of sentencing stated in section 4, and sentences of imprisonment should be regarded as the sanction of last resort taking into account all matters stated in this Part."

[22] In the light of the above facts I consider Section 26(1) of the said Decree.

"26. — (1) 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."

[23] Considering all above factors especially your early plea, you are a first offender, period in remand and your subsequent conduct of maintaining the wife and children without residing with them, I decided to impose a non custodial sentence to you. Your nine (9) months imprisonment is suspended for a period of two (2) years.

[24] The nature and consequence of the suspended sentence is explained to the Accused.

[25] You are sentenced to nine (9) months imprisonment and the same is suspended for a period of two (2) years.

[26] 30 days to appeal to the Court of Appeal.

S. Thurairaja
Judge

At Lautoka
7 December 2012

Solicitors:
The Office of the Director of Public Prosecution for the State
The Office of the Legal Aid Commission for the Accused.