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State v Drelinavai [2014] FJHC 309; HAC31.2014 (7 May 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 31 of 2014

Between:

STATE

And:

JOSUA DRELINAVAI

BEFORE: Hon. Justice Paul Madigan

Counsel: Mr. S. Nath for the State
Mr. P. Tawake (L.A.C.) for the accused.

Dates of hearing: 14 March, 11 April, 2 May 2014
Date of Sentence: 7 May 2014

SENTENCE
Act with intent to cause grievous harm

1. On the 11th April 2014 in this Court, the accused entered a plea of guilty to the following count:
   

Statement of Offence

ACT WITH INTENT TO CAUSE GRIEVOUS HARM: Contrary to section 255 (1) (a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

JOSUA DRELINAVAI on the 3rd January, 2014 at Qauia Settlement, Lami in the Central Division, with intent to do some grievous harm to KARALAINI LIKUBUA unlawfully wounded the said KARALAINI LIKUBUA with a kitchen knife.

2. Following his plea, a set of relevant facts were put to him, facts which he admitted. He was convicted of the charge.
   
3. The facts admitted are that the accused is aged 31 and employed as a transport assistant. On the day in question, at Lami, he stabbed his sister-in –law over a dispute about repayment of a $20 loan.
   
4. On the 3rd January 2014, the victim had been in the kitchen after her husband had left for work. The accused was still in the house lying on the sofa in the sitting room. The victim's daughter was also in the sitting room. The victim came into the sitting room to ask her daughter to go with her to Lami Town. The accused asked the victim about the sum of $20 that she owed him. The victim did not reply to which the accused said "qaraunaiko" which means "watch out!"
   
5. The victim went to her room to bath and the accused followed her and stabbed her on the back of the head with a kitchen knife. The victim fell to the floor and blood poured out of her head. She was unable to move her hands or legs.
   
6. A medical examination revealed that she had a 3cm deep laceration at the right lateral posterior neck. She was hospitalised for 5 days.
   
7. The accused co-operated with the Police and admitted the offence in his interview under caution.
   

Mitigation

8. Counsel for the accused tells me that the accused is 32, married with a 5 year old daughter and had worked for a large transport company asa driver's assistant for $120 per week.
   
9. At the time of the offence the accused had asked for his money back that he had lent the victim but she appeared not to take his request seriously. He was frustrated, took the knife and acted without thought of the consequences.
   
10. He has no previous convictions with a young family.
    
11. He co-operated with the Police and admitted the offence in his caution interview.
    
12. He is said to be remorseful and has apologized to the victim, his sister-in-law. This has been confirmed by a letter she has written to the court saying that she did not want to pursue the matter any further.
    
13. It is submitted that it was an opportunistic crime and not pre-meditated. He had a sudden surge of anger and acted without thought.
    
14. He has pleaded guilty to the crime which has saved the costs of trial and saved the time of the Court.
    

The Law

15. The maximum penalty for this offence is life imprisonment. Various cases, but in particular MabaMokubula 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.
    

16. 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.

17. 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.

18. It is to be remembered that reconciliation in a domestic violence offence is hardly ever genuine and it should be only in extremely special circumstances that this offence when it is domestic violence would attract a suspended sentence. In fact sentences for serious cases of acts with intent in domestic violence can attract sentences well in excess of this tariff laid down here. (see for example EmosiTakuTuigulagula [2011} HAC 81 of 2010(Ltk.))

Discussion

19. First and foremost, this offence is an offence of Domestic Violence. Although the victim has written to the court asking that proceedings be stayed, this cannot be done in a domestic violence case. All too often family members are manipulated for one reason or another not to pursue a case against a relative. Perpetrators however must take responsibility for attacks within a family home and all persons, women especially, must be able to live in their own homes without fear of assault or attack.

20. Section 4 (3) of the Sentencing and Penalties Decree ("SPD") provides special sentencing considerations for an offence of domestic violence which I must consider. It is an aggravating feature in terms of section 4(3)(b) that there was a child presentwhen the attack occurred, and there is the mitigating factor that the accused has taken proven positive steps to accept responsibility for his behavior.

21. The offence is serious in that it was an attack by means of a knife (an inherently dangerous weapon) on a person in the region of the head and neck. Any attack to the head or spinal area must be viewed with the utmost severity because that is an area that is one of the most vulnerable in the body.

22. It is of course to the accused's credit that he has co-operated, pleaded guilty,and reconciled with his sister-in –law. He is young and has a clear record.

23. Although the accused pleads provocation, the provocation alleged is very minimal. For the victim to ignore a request to repay his $20 dollars certainly didn't deserve an attack to the head with a kitchen knife.

24. I take a starting point for this offence a term of 4 years imprisonment. This high starting point subsumes the serious domestic violence attack. For his clear record and relative youth I deduct one year and for his plea of guilty a further year.

25. The accused is sentenced to a term of imprisonment of two years. He will serve a term of 18 months before he is eligible to be released on parole.

26. There is a domestic violence restraining order in effect protecting the victim. That will remain in place until further order.

Paul K. Madigan
Judge.

At Suva
7 May 2014