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State v Bibi [2012] FJMC 118; Criminal Case 492.2011 (7 June 2012)

IN THE RESIDENT MAGISTRATE'S COURT OF NAUVA

Criminal Case No: 492/2011

STATE

V

RAZIO BIBI

For Prosecution : - Sgt.Lenaitasi
Accused : - Mr. Tawake from Legal Aid as Duty Solicitor

SENTENCE

1. You RAZIO BIBI, were charged in this court, for the offence of Assault Occasioning Actual Bodily harm which is punishable under Section 275 of the Crimes Decree No 44 of 2009 as first count and Damaging property which is punishable under Section 369(1) of the Crimes Decree No 44 of 2009 as second count.
   
2. You pleaded guilty to the both counts on 29 March 2012. I am satisfied that you fully comprehended the legal effects and that your plea was voluntary and free from influence. Wherefore I convict you for the said offences.
   
3. Summary of facts, as admitted by you before the court, revealed that both these offences were committed on 22nd Aug 2011, at Togoru, Navua in the Central Division.
   
4. Further, the summary of facts revealed, that you assaulted Khusahal Prakasha (complainant) causing him injuries as per the medical report. Also you damaged the properties of the complainant all to the total value of $890.00.
   
5. Upon considering the summery of facts in this crime, I now direct myself to consider appropriate sentences on you upon considering the general principle of sentencing under Section 15 (3) and section 17 of the Sentencing and Penalties Decree and objective of sentencing under section 4 (1) and 4 (2) of the Sentencing and Penalties Decree.
   
6. The maximum sentence for the Assault Occasioning Actual Bodily Harm is 5 years imprisonment. In State v Tugalala(2008) FJHC 788 it was held that tariff for this offence is from absolute discharge to 12 months imprisonment. In Elizabeth Joseph V The State (2004) HAA073 it was decided that the extent of injury would determine the sentence.
   
7. According to the section 369(1) of the Crime decree the maximum sentence that could be imposed against you for the said offence of Damaging Property is for two years imprisonment. There is no set of tariff for the offense of Damaging Property (Gounder J in Tikomainiusiladi v State [2008] FJHC 18; HAA 134.2007 (15 February 2008). But in Navitalai v The State, Criminal Appeal No HAA0084 & 85 of 2002 S, a sentence of 2 years imprisonment for the criminal damage of a door valued at $ 250.00 was reduced to 6 months imprisonment on appeal. Furthermore in State v Naqa, Criminal Appeal No. HAA0023 of 2003 S, Shameem J upheld a term of 12 months imprisonment for the criminal damage of Monasavu Dam to a value of $ 10,000.00.
   
8. After considering the tariff for the both offences and summary of facts in this case, I select 6 months as the starting point for both counts in your sentence.
   

Aggravating Factor

9. The victim was your husband. Therefore this is comes under domestic violence. Also the value of the damaged properties was high. For these aggravating factors I increase 6 months from both counts and now your sentence stand for 12 months for both counts.
   

Mitigating Factors

10. The learned duty solicitor from the Legal Aid submitted following mitigating factors in his mitigating submission.
    
    1. 20 years old presently separated.
    2. Early guilty plea.
    3. Seek forgiveness.
    4. Fully cooperated with the police.
       
11. For the above mitigating factors I deduct 4 months from your both counts. Now your sentence stands for 8 months for both counts.
    
12. Both these offences are reconcilable under Sec 154 of the Criminal Procedure Decree. However it is clearly stipulated in Sec 154(6) that if these are committed with in domestic setting then there can't be any reconciliation. But still if there is any reconciliation that can be taken as a mitigating factor. There is nothing before the court to show that parties have reconciled.
    
13. After adjusting for aggravating and mitigating factors I have come to 8 months as your sentence for both counts. In pursuant to section 26 (2) (b) of the Sentencing and Penalties Decree I am mindful that a sentence which is below two years could be suspended by this court.
    
14. You are a young offender as well as a first offender. I take in to consideration following cases in deciding your final sentence.
    
    15. In Prasad v The State [1994] FJHC 132; Haa0032j.94s (30 September19994) S W Kepa J enunciated that the fact that Appellants are first oers ought to beto be a very strong mitigating factor in their favour. A prison sentence ought to be the last resort after turt has explored and exhausted all other alternative sentences. (Emphasize is mine).
16. In Prasad v State [1994] FJCA 19; Aau0023u.93s (24 May 1994), Fiji Court of Appeal held that ".... Courts ought to bend backwards to avoid immediate custodial sentence for first offenders."
    
17. It has been noted in Prasad v The State [1994] FJHC 132 (Supra) that criminologists recognise that a prison sentence should be the last resort especially where a first offend60;is concernederned unless the charge is very serious or the offender is dangerous and imprisonment is called for in the public interest or in the interest of the offender himself. (Emphais mine).
    
18. Singh v The State [2000] FJHC 115; Haa0079j.2000s (26 October 2000) Her Ladyship Shameem J stated that "However as a general rule, leniency is shown to first offenders, young offenders, and offenders who plead guilty and express remorse. I believe that in this case, every effort should have been made to keep four of the Appellants out of prison. They were first offenders, they were only 18 years old, and they pleaded guilty on being brought to court. Although the 1st Appellant was not 18 years old, he was a first offender and this offence was clearly an aberration during what appears to be an otherwise blameless life."
    
19. In Nariva v The State [2006] FJHC 6; HAA0148J.2005S (9 February 2006) Shammem J again stressed; "The courts must always make every effort to keep young first offenders out of prison. Prisons do not always rehabilitate the young offender. Non-custodial measures should be carefully explored first to assess whether the offender would acquire accountability and a sense of responsibility from such measures in preference to imprisonment."
    
20. Therefore I believe you should be given a chance to rehabilitate away from a custodial sentence. Accordingly I sentence you to 8 months for both counts and suspend your sentence for 1 year.
    
21. If you commit a crime during the period of 1 year and found guilty by the court you are liable to be charged under sec 28 of the Sentencing and Penalties Decree

28 days to appeal.

07/06/2012

H.S.P.Somaratne
Resident Magistrate, Navua