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State v Boseyaco - Sentence [2019] FJHC 1037; HAC48.2018 (30 October 2019)

IN THE HIGH COURT OF FIJI
AT LABASA
[CRIMINAL JURISDICTION]

CRIMINAL CASE NO: HAC 48 of 2018

STATE

V

ISOA BOSEYACO

Counsel : Ms. Amelia Vavadakua with Mr. Inia Rakaria for the State
Mr. Amrit Sen for the Accused

Dates of Trial : 30 September & 1-3 October 2019

Summing Up : 4 October 2019

Judgment : 4 October 2019

Sentence Hearing : 16 October 2019

Sentence : 30 October 2019

SENTENCE

[1] Isoa Boseyaco you were charged with the following offences:

COUNT ONE

Statement of Offence (a)

ACT WITH INTENT TO CAUSE GRIEVOUS HARM: Contrary to Section 255 (a) of the Crimes Act 2009.

Particulars of Offence (b)

ISOA BOSEYACO, on the 23^rd day of June 2018, at Tarven Night Club, in Savusavu, in the Northern Division, with intent to do some grievous harm to TANIELA DELAI, unlawfully wounded the said TANIELA DELAI, with a knife.

COUNT TWO

Statement of Offence (a)

ACT WITH INTENT TO CAUSE GRIEVOUS HARM: Contrary to Section 255 (a) of the Crimes Act 2009.

Particulars of Offence (b)

ISOA BOSEYACO, on the 23^rd day of June 2018, at Tarven Night Club, in Savusavu, in the Northern Division, with intent to do some grievous harm to SAVENACA RATUDUGUCA, unlawfully wounded the said SAVENACA RATUDUGUCA, with a knife.

[2] You pleaded not guilty to the above mentioned charges and the ensuing trial was held over 4 days.

[3] At the conclusion of the evidence and after the directions given in the summing up, by a unanimous decision, the three Assessors found you guilty of the first count of Act with Intent to Cause Grievous Harm. By a unanimous decision, the three Assessors found you not guilty of the second count as charged. However, by a majority decision, the Assessors found you guilty of the alternative charge of Assault Causing Actual Bodily Harm.

[4] Having reviewed all the evidence, this Court agreed with the unanimous opinion of the Assessors finding you guilty of Count One and the majority decision of the Assessors in finding you guilty for the alternative charge of Assault Causing Actual Bodily Harm for Count Two. Accordingly, you were convicted of Act with Intent to Cause Grievous Harm, in terms of Section 255 (a) of the Crimes Act No. 44 of 2009 (Crimes Act) in respect of Count One; and for Assault Causing Actual Bodily Harm, in terms of Section 275 of the Crimes Act in respect of Count Two.

[5] In support of their case, the prosecution called the two complainants, Taniela Delai and Savenaca Ratuduguca, witness Sairusi Ratusili, and two Medical Officers: Dr. Rayape Racaca and Dr. Maloni Bulanauca.

[6] Both complainants testified as to the manner in which you attacked them with a knife, and thereby caused injuries to them, on 23 June 2018, at the Tarven Night Club, in Savusavu. Due to the injuries you caused on Taniela Delai’s abdomen, a surgery had to be performed, under general anaesthesia, the next day.

[7] Section 4 of the Sentencing and Penalties Act No. 42 of 2009 (“Sentencing and Penalties Act”) stipulates the purposes for which sentencing may be imposed by a Court; and sets out the relevant factors that a Court should take into account during the sentencing process. I have duly considered these factors in determining the sentence to be imposed on you.

[8] In terms of Section 255 (a) of the Crimes Act “A person commits an indictable offence if he or she, with intent to maim, disfigure or disable any person, or to do some grievous harm to any person, or to resist or prevent the lawful arrest or detention of any person—

(a) Unlawfully wounds or does any grievous harm to any person by any means......”

The prescribed penalty for this offence is imprisonment for life.

[9] The offence of Act with Intent to Cause Grievous Harm also existed under the Penal Code (Section 224 of the Penal Code), with the same prescribed penalty of life imprisonment.

[10] In State v. Maba Mokubula [2003] FJHC 164; HAA 52J.2003S (23 December 2003); Her Ladyship Madam Justice N. Shameem said:

"On the basis of these authorities, the tariff for sentences under section 224 of the Penal Code, is between 6 months imprisonment to 5 years imprisonment. In a case of an attack by a weapon, the starting point should range from 2 years imprisonment to 5 years, depending on the nature of the weapon.

Aggravating factors would be:

1. Seriousness of the injuries;
2. Evidence of premeditation or planning;
3. Length and nature of the attack;
4. Special vulnerability of the victim;

Mitigating factors would be:

1. Previous good character;
2. Guilty plea;
3. Provocation by the victim;
4. Apology, reparation or compensation.

In general terms, the more serious and permanent the injuries, the higher the sentence should be. As a matter of principle, a suspended sentence is not appropriate for a case of act with intent to cause grievous harm......”

[11] His Lordship Justice Madigan in State v. Emosi Taku Tuigulagula [2011] FJHC 163; HAC 31.2010 (15 March 2011); stated thus:

“The maximum penalty for this offence is life imprisonment and the Court of Appeal has said in Shaukat Ali (1976) 22 FLR 87 that for this offence a custodial sentence is inevitable. The offence is akin to section 224 of the old Penal Code and so the authorities pertaining to that section are relevant. In the case of Mokubula (2003) FJHC 164, Shameem J set out several cases of assault intending to cause grievous bodily harm and came to the conclusion that the then prevailing "tariff" was between 6 months imprisonment to 5 years imprisonment, but stressing that where a weapon was used the starting point should be 2 years.”

[12] However, in the above case, Justice Madigan sentenced the accused, who pleaded guilty for striking his wife with a cane knife, severing her fingers in both hands, excluding the thumbs, and also injuring the head, to 6 years imprisonment.
[13] In State v. Asesela Rabia [2012] FJHC 877; HAC074.2011 (22 February 2012); the Fiji High Court followed the tariff that had been adopted in Mokubula and Tuigulagula (supra).

[14] In State v. Seremaia Nalulu & 4 others [2013] FJHC 358; HAC 155.2010 (23 July 2013); His Lordship Justice Paul Madigan, while adopting the above tariff held as follows:

“The maximum penalty for act with intent to cause grievous harm contrary to Section 255(a) of the Crimes Decree 2009 is life imprisonment. Despite the accepted tariff being between 6 months and 5 years (as set by Shameem J in Mokubula (2003) FJHC 164) much higher sentences have been passed when the circumstances dictate. In Tuigulagula HAC 81 of 2010 this Court passed a sentence of six years on a husband who did very serious harm to his wife. The penalty being life imprisonment, it is to be regarded as a very serious offence indeed and sentences of up to 8 years would not be out of order.”

[15] In State v. Vakalaca [2018] FJHC 455; HAC027 of 2018 (31 May 2018); Justice Goundar while adopting the above tariff said:

“[13] The offence of Act with Intent to Cause Grievous Harm is punishable by discretionary life imprisonment. The tariff for this offence is between 6 months imprisonment to 5 years imprisonment, and in cases where a weapon is used, the starting point should range from 2 years imprisonment to 5 years, depending on the nature of the weapon (State v Mokubula [2003] FJHC 164; HAA0052J.2003S (23 December 2003).”

[16] In Vosa v. State [2019] FJCA 89; AAU0084.2015 (6 June 2019); the Fiji Court of Appeal whiking ence to the tariff range and the sentences imposemposed in d in the above mentioned cases said that they provide some form of guidance in sentencing offenders for the offence of Act with Intent to Cause Grievous Harm, subject of course to the different aggravating and mitigating circumstances prevalent in those cases.

[17] Having regard to the above authorities, and since a weapon (a knife) had been used to commit the offence, I consider the tariff for the offence of Act with Intent to Cause Grievous Harm in the instant case to be between 2 years to 5 years imprisonment.

[18] In determining the starting point within the said tariff, the Court of Appeal, in Laisiasa Koroivuki v State [2013] FJCA 15; AAU 0018 of 2010 (5 March 2013); has formulated the following guiding principles:

“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 time. 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.”

[19] In the light of the above guiding principles, and taking into consideration the objective seriousness of the offence, I commence your sentence at 2 years imprisonment for Count One.

[20] The aggravating factors in this case are as follows:

(i) The complainant was unarmed and the attack was unprovoked and sudden that the complainant did not even have time to defend himself.

(ii) The attack happened at the complainant’s own work place. You showed no regard to the complainant’s rights and his personal safety.

(iii) The complainant Taniela Delai and you were close family friends. However, by your act and subsequently causing injury to the complainant, you have breached the trust expected from you.

(iv) You caused serious injuries to the complainant. A surgery had to be performed to treat the injury you caused to the complainant’s abdomen. Furthermore, the complainant had to be hospitalised for over a week at the Labasa Hospital.

[21] In mitigation it is submitted that you are a first offender. This has been confirmed by the State. It is also submitted that you deeply regret your acts and seek the mercy and forgiveness of Court. You have submitted that you are remorseful of your actions. It is also stated that you have apologised to the complainant, Taniela Delai, and that he has accepted your apology. Therefore, you and the complainant have now reconciled.

[22] Isoa Boseyaco, you are said to be 43 years of age and married with three children. You are said to be residing with your family at Yaroi Village in Savusavu and you are the sole breadwinner of your family. However, it is the opinion of this Court that these are personal circumstances and cannot be considered as mitigating circumstances.

[23] Considering the aforementioned aggravating factors, I increase your sentence by a further 4 years. Now your sentence is 6 years. For your previous good character and for the other mitigating circumstances, I reduce 3 years from your sentence. Now your sentence is 3 years’ imprisonment.

[24] In terms of Section 275 of the Crimes Act “A person commits a summary offence if he or she commits an Assault Causing Actual Bodily Harm.” The prescribed penalty for this offence is a term of imprisonment for 5 years.

[25] In State v. Tugalala [2008] FJHC 78; HAC 25S of 2008S (29 April 2008); Her Ladyship Madam Justice N. Shameem said:

"The tariff for this offence appears to range from an absolute or conditional discharge to 12 months imprisonment. The High Court said in Elizabeth Joseph v. The Stu> [2004] HAA 030/04S and State&#160 v. T Alafi [2004] H04] HAA073/04S, that it is the extent of the injury which determines sentence. The use of a pen knife for instance, justifies a higher starting point. Where there has bedeliberate assault, causingusing hospitalization and with no reconciliation, a discharge is not appropriate. In domestic violence cases, sentences of 18 months imprisonment have been upheld (Amasai Korovata v. The State [2006] HAA 115/06S).”