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State v Nanovu [2016] FJMC 45; Criminal Case 1480.2015 (11 April 2016)

IN THE MAGISTRATES’ COURT OF FIJI

AT SUVA

Criminal Case No: - 1480/2015

STATE

v

KAIYAVA YALATAKI NANOVU

For the Prosecution : PC Josuha

For the Accused : Mr.Tuicolo (LAC)

Date of Sentence : 11^th of April 2016

SENTENCE

1. KAIYAVA YALATAKI NANOVU, you were charged with one count of Act with Intend to cause Grievous Harm contrary to section 255(b) of the Crimes Decree No 44 of 2009.
2. You pleaded guilty for this charge on 07/04/2016 and also admitted the following summary of facts:
   • Arrested and formally charged one Kaiava Yalataki Nanovu (B-1), 27 yrs, shoe shine boy of Flat 5, Raj Moti Lal Building, Raiwai for the offence of Act with Intent to Cause Grievous Harm contrary to Section 255(b) of the Crimes Decree No. 44 of 2009.
   • On the 21/8/15 at about 0630hrs Tawake Naikarawa (A-1), 37 yrs, Bouncer of Signals night club of 46 Nasilivata road, Nadera after finishing off work at Signals night club headed towards Suva City Library along Victoria Parade and sat down on the benches provided together with his college namely Meli Saubulinayau (A-2), 39 yrs, Boucher of Signal night club of 8 Minton, Milverton road, Raiwai. Also accompanying (A-1) was his wife namely Lucy Borisi (A-3), 22 yrs, Bartender of 46 Naisilivata road, Nadera.
   • The bench beside (A-1) was occupied by a group of i-Taukei males. All members of the group were drunk and were causing nuisance to the passing by public. After a while this group started causing trouble to an i-Taukei lady namely Aggie (OPNK). (A-2) then approached i-Taukei lady namely Aggie and asked what was the problem. This lady told (A-1) that this group has stolen her laptop. (A-1) then advised the mentioned lady to go to Totogo Police Station and report the matter.
   • At this time whilst (A-1) and Aggie were having a conversation a member of the above mentioned group went to (A-1) bench where (A-2) and (A-3) were seated and picked up a parcel of food which belonged to (A-1) and started eating it.
   • (A-1) saw the mentioned person having his good parcel and came up to him and chased him away. At that moment (B-1) stood up and came up to (A-1) and challenged him for a fight. (A-1) chased (B-1) away. (B-1) started swearing at (A-1) and at that same time (B-1) took out an iron rod which was pegged inside the garden of Suva City Library and used it to strike (A-1). (A-1) tried to stop the rod with his hand whereby he attained injuries on his right hand. (B-1) was taken away from (A-1) by a police officer namely SC4521 Koroi Navatulutu (A-4), 27yrs, Police Officer of Fiji Police Central Transport pool.
   • (B-1) then again took out another iron rod and used it to strike (A-1) the second time on his head. (A-1) was knocked out at the scene. (A-4) then arrested (B-1) at the scene and brought him to Totogo Police Station and then conveyed (A-1) to CWM Hospital to receive medical attention. Later the iron rod used to strike (A-1) was uplifted from the scene.
     
3. I am satisfied about the plea and convict you for this charge.
   

The Law and the Tariff

4. The maximum sentence for Act withIntent to Cause Grievous Injuries is life imprisonment.
5. InState v Drelinavai [2014] FJHC 309 his Lordship Justice Madigan said :

“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.

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.

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.”

6. InKoroivuki v. State [2013] FJCA 15; AAU 0018.2010 (5 March 2013) his Lordship Justice Suresh Chandra said:

"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 stage. 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."

7. Considering the gravity of offending I select 03 years as the starting point for this sentence.

Aggravating Factors

8. The following are considered as aggravating factors :
   1. The accused used an iron rod for the assault ;
   2. He struck the victim in his head which is a vulnerable place in the body.
9. For the above aggravating factors I add 01 year to reach 04 years imprisonment.

Mitigating Factors

10. The learned counsel from the legal aid filed a written mitigating submission and from that I consider the following :
    1. Married with a child;
    2. Remorseful of his behavior;
    100. First offender.
11. For these mitigating factors I deduct 01 year to reach 03 years imprisonment.
    

Guilty Plea

12. In Naikelekevesi v The State Criminal Appeal No AAU 0061 of 2007 it was observed :

“...where there is a guilty plea, this should be discounted for separately from the mitigating factors in a case”.

13. In UK sentencing guidelines of 2007 it has been held that when an accused pleaded guilty at the first available opportunity the reduction is 1/3 and after a trial date is set 1/4 recommended. But when an accused pleaded guilty at the door of the court or after the trial has started he maybe entitle for only 1/10 discount.
14. Even though the learned defence counsel is asking for full credit for your plea of guilty this was made after a sometime from the first time you appeared in this court. During that time you were on bench warrant for nearly 04 months. Therefore I deduct only 06 months to reach 30 months imprisonment.
15. Main considerations in this sentence are to denounce your behavior and also to deter future offenders. Therefore I sentenced you to 30 months imprisonment for the offence of Act with Intend to cause Grievous Harm with a non-parole period of 18 months.
16. Since this court is exercising the extended jurisdiction of the High Court case, the parties may appeal against this sentence within 30 days with leave to the Court of Appeal.
    

Shageeth Somaratne

Resident Magistrate, Suva