Provocation and drunkenness no defence for grievous attack – Court

Thursday 14 November 2019 | Written by Losirene Lacanivalu | Published in Crime


The Court of Appeal has increased the prison sentence of a man who threw his friend headfirst over a 2.8 metre balcony, shattering his spine.

The sentencing judge had given Ratu Savenaca Virivirisai’s a lighter sentence because he said he was drunk, and claimed he was upset at seeing the other man touch his girlfriend’s thigh.

But now, the three Court of Appeal justices have rejected drunkenness and provocation as mitigating factors.

Justice Sir David Williams, Sir Raynor Asher and Sir Douglas White quashed the original sentence of two years and nine months’ imprisonment, and ordered Virivirisai to serve the full four years instead.

At a trial earlier this year, a jury found Virivirisai, 36, guilty of grievous bodily harm on his former friend, and assaulting his own partner.

He had been at a kava session with male friends; his partner had been drinking with female friends. Both groups returned to Virivirisai and his partner’s home in Nikao, where they continued drinking alcohol.

But Virivirisai claimed he saw Etati Vero touch his partner on her thigh – which upset him so much that he bashed Vero, kicked him, then threw him headlong over the balcony while others at the party cried out in alarm.

Virivirisai then chased his fleeing partner and punched her in the head.

Vero was left a quadriplegic. He had to be stabilised and evacuated to Fiji, where after 18 months of rehabilitation, he has finally been able to walk again.

Chief Justice Sir Hugh Williams QC, the sentencing judge, had accepted defence lawyer Norman George’s arguments that provocation and drunkenness should lessen the jail time.

But Crown Law appealed the sentence, saying the starting point for grievous bodily harm should have been higher, and provocation and drunkenness should not mitigate the severity of the crime.

Defence counsel Norman George argued that the Chief Justice’s decision was fair, particularly for the Cook Islands environment, a Christian community that was more forgiving.

The Court of Appeal agreed Cook Islands was more forgiving – but not that Virivirisai should be held less responsible for his actions.

“Mr Virivirisai’s action of throwing [Vero] off the balcony was so disproportionate to any perceived insult or slight, a minute earlier, as to render it irrelevant as a mitigating factor,” the appeal judges said.

Further, the Court rejected the plea for mitigation because he was drunk. “Mr Virivirisai was a mature adult … His intoxication was irrelevant.”

Eighteen months on, Vero still suffers pain, numbness and some incapacity. “It must have been shocking for him to have little feeling below his neck for those first weeks,” the judges said.

“The injuries have been severe with long-lasting effects. He is also responsible for a debt of approximately $50,000 for his flight to, and treatment in, Fiji, a most severe financial burden.”

It was admirable, the judges said, that Vero had written to the court expressing his forgiveness of Virivirisai.

Read more:

* Editorial: Balcony brute rightly held responsible

* Balcony accused gets 2 years’ jail

* Balcony accused found guilty

* Balcony verdict to be passed today

* Victim ‘thrown’ off balcony