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State v Vece - Sentence [2022] FJHC 427; HAC014.2021 (20 July 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
Criminal Case No. HAC 014 of 2021

BETWEEN : THE STATE

AND : RUCI VECE

Counsel : Ms. Ram, P. for the State
: Mr. Valenitabua, S.R. for the Accused

Date of Trial : 16 – 20 May 2022
Date of Judgment : 01 July 2022
Date of Sentence : 20 July 2022

SENTENCE

1. Following a trial, the Court found the Accused guilty and convicted her of one count of act with intent to cause grievous harm.
   
2. The facts are that the offender and the victim were at the material time, sisters in law. Their de facto partners are brothers. They were part of a family party on New Year’s Day, 2021. During the party, the offender and the victim got into an argument arising out of the offender mocking the victim for being older than her partner and for having many children. Their partners got involved and ended up in a fight which could not be contained until their mother called a neighbor to intervene.
   
3. The offender’s partner left the party with a bloody nose and would not return despite being asked by a relative to come back to the group. The offender followed her partner after being told that he had left.
   
4. Sometime later, she returned agitated and angry, looking for a knife or chopper and saying she wanted to kill the victim. Finding none, she got a piece of timber from underneath a neighbour’s house and went to the family home where the victim and her partner had “knocked out,” having consumed alcohol from the previous night. She found the victim in this state in a room and struck her a number of times with the piece of timber. The victim had no idea what happened to her until she woke up to pain and injuries on her face and body. Mereoni, the neighbor who followed the offender into the victim’s bedroom, witnessed the attack and told her the next day what happened.
   
5. The victim did not report the matter right away out of some sympathy for the offender being a mother with children. However when her pains and discomfort persisted, she decided to go to the hospital and report the matter to the Police.
   
6. The injuries were not life threatening and comprised scalp and finger lacerations, abrasions on the left shoulder and mid back, and bruising on her right buttock and stomach area.
   

Maximum penalty and tariff

7. The maximum penalty for the offence of act with intent to cause grievous harm is life imprisonment.
   
8. In State v Mokubula Criminal Appeal No: HAA0052 of 2003S, (23 December 2003), Shameem J referred to a number of decided cases for this offence, stating:

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...

9. In State v Viliame Cavubati [2002] FJHC 327, Shameem J stated:
   

Nevertheless, on the basis of these cases and those submitted to me by State counsel, several matters of principle emerge. One is that the offence of act with intent to cause grievous harm is a serious one which must almost always result in an immediate custodial sentence. Another is that, whilst good character is undoubtedly a mitigating factor, it should not require the court to give a non-custodial sentence unless the facts of the case themselves are not serious. Lastly where the act complained of is an act involving the use of weapons, especially a knife, this should result in a substantial increase in the sentence.

10. In State v Tuigulagula Criminal Case No. HAC 31 of 2010, Decision of 15 March 2011, the offender pleaded guilty to striking his wife multiple times with a sharpened cane knife. She lost all of her fingers except for her thumbs on both hands. He was sentenced to 6 years imprisonment.
    
11. In State v Trail [2011] FJHC 613; HAC131.2011 (3 October 2011), the 20 year old first offender had punched the victim and then struck him repeatedly with a piece of timber. He cooperated with the Police in the course of investigations and pleaded guilty in Court. There was an element of provocation. He was sentenced to 1 year imprisonment, suspended for 2 years.
    
12. In State v Khan [2010] FJHC 559; HAA022.2010 (15 December 2010), the offender had entered the victim’s house and struck him on the head with a piece of timber. The victim sustained a sharp cut wound measuring 5cm in length on the skull. The offender pleaded guilty and expressed remorse. In the Magistrate’s Court, he was given a suspended sentence. On appeal, he was sentenced to 6 months imprisonment.
    
13. In State v Lal [2020] FJCA 44; AAU001.2017 (28 April 2020) the State applied for extension of time to appeal against the sentence of 18 months imprisonment, suspended for 2 years in the Magistrate’s Court. The offender had struck the victim with a piece of timber. By the time the application was heard, the Respondent had already served out his suspended sentence. The Court of Appeal held that the sentence was not so manifestly lenient as to warrant its intervention.
    
14. The authorities are clear. The use of a weapon is a serious matter, usually warranting a custodial sentence. The offending in this case is serious. The offender had used a piece of timber to repeatedly strike the victim.
    
15. Though the tariff appears to range from a suspended sentence to 8 years, authority states that the tariff where the use of a weapon is involved should be 2 – 5 years imprisonment.
    

Mitigating factors

16. The offender is a person of previous good character. Also mitigating is that the injuries sustained by the victim were neither serious nor life threatening.
    

Aggravating factors

17. The offender and victim were sisters in law residing in the same home at the time of the offending. There was therefore a domestic relationship as defined in the Domestic Violence Act. The attack involved the use of a weapon on a defenseless victim who was asleep. These factors aggravate the offending.
    
18. Earlier in proceedings, the offender had been kept in remand for 7 days.
    
19. I do not accept this was a pre-meditated or planned offending. The facts point more to a heat of the moment reaction after the offender discovered her husband’s condition as a result of the fight between him and his brother, all arising out of her argument with the victim.
    
20. The offender pleads for leniency and to be spared from an imprisonment sentence to allow her to continue to look after her children. She says her husband had left her and their 5 children and never returned. She has had to care for the children on her own. She has had to work hard to provide for the children. The eldest is now 13 years old and the youngest, 5.
    
21. Her father sought mercy from the Court, to give the offender a second chance so as to be able to continue to take care of her children.
    
22. A letter from the offender’s eldest daughter also begs for clemency to allow her mother to return to look after her and her siblings.
    
23. A character reference from the offender’s employer was tendered as part of the mitigation plea for the offender. Her employer refers to the offender as an honest, reliable and hardworking employee and a devoted mother.
    
24. While this Court accepts the testimonies of her father and employer as to her being a hardworking and provident mother, this does not excuse violent behavior against a family member in a vulnerable situation.
    
25. The offender’s counsel relies on decided cases where suspended sentences were given for this offence. The cases cited involved cooperation with the Police during investigations, early guilty pleas signaling remorse and contrition, and reconciliation between the offenders and the victims.
    
26. None of these features exist in this case. Apart from a softening expression when the victim was distressed in the course of her evidence, the offender has showed no signs of remorse. No attempt has been made to reconcile. The plea for mercy is only on account of the offender’s children requiring her care.
    
27. Having considered the nature and circumstances of offending, the mitigating and aggravating factors as well as the period spent in remand, I sentence the offender to 2 years imprisonment.
    
28. I do not consider this a suitable case for a wholly suspended sentence of imprisonment despite the plea to be able to continue to look after the children. The use of a weapon to repeatedly beat the victim while she was asleep, was as senseless as it was unnecessary. There is a need to denounce violent attacks of this nature, and deter likeminded persons. Given the circumstances of the offending, a short, sharp custodial and partially suspended sentence will serve this purpose.
    
29. Accordingly, I sentence the offender to 2 years imprisonment, 6 months of which is to be served in custody. The remaining 18 months imprisonment is to be suspended for 3 years.
    
30. It is most unfortunate that this sentence will inevitably affect the children. For this reason, I direct for the Department of Social Welfare to attend to the welfare of the offender’s children while she serves out her custodial sentence.
    
31. The offending is within a family setting. I issue a permanent domestic violence restraining order against the offender for the protection of the victim. The Order is for standard non molestation conditions pursuant to ss. 27 of the Domestic Violence Act.
    
32. Suspended sentence explained.
    
33. 30 days to appeal to the Fiji Court of Appeal.
    

Siainiu F. Bull
Acting Judge

Solicitors:
Office of the Director of Public Prosecutions for the State
Valenitabua & Associates for the Accused