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State v Tugalala [2008] FJHC 78; HAC025S.2008S (29 April 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC 025 of 2008

STATE

v.

SALOTE TUGALALA

Hearing: 17th April 2008 – 29th April 2008
Sentence: 29th April 2008

Counsel: Mr. A. Rayawa for State
Mr. S. Karavaki for Accused

SENTENCE

Salote Tugalala, you have been found guilty of the offence of assault occasioning actual bodily harm under section 245 of the Penal Code. The maximum sentence for the offence is 5 years imprisonment.

The facts led in evidence are that the wife of your de facto partner, Constable Filipe Puamau came to your house with her baby Jacob Ledua. He was 2 weeks old and the evidence is that he is the child of Constable Filipe and his wife Meresiana. During a conversation with your landlady you punched Meresiana twice. The first punch landed on her, the second on the baby causing him a fractured skull. He was in a critical condition as a result and admitted at the CWM Hospital for one week. He has received no permanent injury nor brain damage. I am told by your counsel that Meresiana and you are now speaking to each other and that Meresiana now lives in Kadavu.

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 State [2004] HAA 030/04S and State v. Tevita Alafi [2004] 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 been a deliberate assault, causing 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.

The aggravating factors in this case are the injuries on Jacob, the vulnerable character of a mother carrying a baby, and the pain and suffering caused to both Meresiana and Jacob. These factors indicate a custodial sentence.

However, the mitigating factors are compelling. You are a first offender, and a police officer who has been suspended since the charge was laid. You will now be dismissed from the police force because of this conviction. This is a serious consequence for you. Also in your favour is your youth and the fact that you have 3 children one of whom you are breastfeeding. Lastly, you showed remorse in your interview with the police and clearly regret the entire incident.

I do not class this offence as one committed by a police officer in the course of her duties. You committed this offence because of your personal life and I accept that you intended no serious harm to either Meresiana or her baby.

For these reasons I consider that I should impose a non-custodial sentence. The pastor of your church is willing to supervise your community work. This is not a case for a discharge not only because of the injuries on baby Jacob but also because of the nature of the assault.

I order that you perform 200 hours of community work, under the supervision of the Probation Officer Suva, who may liaise with the pastor of your church. Your 200 hours must be performed within 6 months. A report of your performance must be submitted to me after you have served 100 hours and then after 200 hours. A breach of this order or a failure to perform makes you liable to prosecution under the Community Work Act and/or the cancellation of this sentence. I must warn you that if you fail to perform the work ordered, you are likely to be sentenced for this offence to a period of imprisonment. You must report to the Probation Officer Suva within 72 hours of this sentence.

Nazhat Shameem
JUDGE

At Suva
29th April 2008