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State v Maitinara - Sentence [2022] FJHC 189; HAC03.2022 (5 April 2022)

IN THE HIGH COURT OF FIJI

AT LABASA

[CRIMINAL JURISDICTION]

CRIMINAL CASE NO. HAC 03 OF 2022

BETWEEN : STATE

AND : PETERO MAITINARA

Counsel : Ms L Latu for the State

Ms R Raj for the Accused

Date of Hearing : 31 March 2022

Date of Sentence : 05 April 2022

SENTENCE

[1] The Accused has pleaded guilty to a charge of act with intent to cause grievous harm. The facts are as follows. The incident occurred on 19 December 2021 on Rabi Island. The victim is a 13 year old cousin of the Accused. They lived in the same settlement and were neighbours.

[2] On the day of the incident the victim’s mother told him to go and fetch a pot from his aunt’s house. When the victim arrived at his aunt’s place, the Accused was there. He appeared to be drunk. The Accused said something to the victim but the victim did not get what was being said to him.

[3] According to the victim’s aunt the Accused without any reason stood up, took the iron roti plate and hit the victim on his head several times until he was unconscious on the ground. The aunt pleaded with the Accused to stop as she saw the victim was bleeding from the head.

[4] The victim’s mother heard the commotion. She came outside her house and saw the victim lying unconscious covered in blood. She immediately took the victim to Rabi Health Centre. From Rabi the victim was transferred to Savusavu hospital and then to Labasa hospital. From Labasa the victim was transferred to the Intensive Care Unit at CWM hospital. The victim sustained deep wounds to his head and depressed skull fracture measuring 6 cm x 2 cm. According to the doctors the injuries sustained by the victim were life threatening and may take 6 months to 2 years to recover.

[5] The Accused was arrested and interviewed under caution. He admitted assaulting the victim. He said that he lost his temper when the victim teased him by calling him a dog.

[6] The offence is objectively serious. The maximum penalty for intentionally causing

grievous harm is life imprisonment.

[7] In State v Mokubula [2003] FJHC 164; HAA0052J.2003S (23 December 2003), Shameen J laid down the following guidelines for the offence:

“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....”

[8] I endorse the above guidelines.

[9] The Accused is 20 years old and a first time offender. I consider his young age,

previous good character and early guilty plea as mitigating factors. He has saved court’s time and resources by pleading guilty early.

[10] The aggravating factors are that the victim was a child and a younger cousin brother of the Accused. The injuries that the victim had sustained on his head are serious. The victim was hit on the head several times until he lost his consciousness. The violence was fueled by alcohol and bad temper and not provocation.

[11] The court’s duty is to denounce the use of violence causing significant harm to the child victim in this case, despite the Accused being a young and a first time offender. The weapon used was an iron plate. I use 3 years as my starting point and add 3 years to reflect the aggravating factors. I deduct 2 years and 9 months to reflect the mitigating factors and 3 months to reflect the remand period of the Accused.

[12] The Accused is convicted and sentenced to 3 years imprisonment with a non-parole period of 2 years.

[13] A permanent DVRO with standard non-molestation conditions is issued against the Accused for the protection of the victim.

. ...........................................

Hon. Mr Justice Daniel Goundar

Solicitors:

Office of the Director of Public Prosecutions for the State

Office of the Legal Aid Commission for the Accused