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State v Katisawani [2012] FJMC 121; Criminal Case 416.2012 (8 June 2012)

IN THE RESIDENT MAGISTRATE'S COURT OF FIJI ISLANDS
AT SUVA

Criminal Case No; 416/2012

STATE

V

ILIAVI KATISAWANI

Prosecution : Cpl Reddy, Police Prosecutor.
Accused : Mr Fesaitu. (Of Legal Aid Commission)

SENTENCE

1. Complainant victim of this case has been the wife of the accused. She was 24 years and married for last six years. On 29.01.2012 after lunch the accused asked her to take their 3 year old daughter inside the room to feed. Then the accused closed all the windows and the doors of their house in the settlement and followed her to the room. The victim wife refused, when the accused forcefully tried to have sex with her.
   
2. Then the accused forced her to sit on the floor and shaved her head and eye brows to reflect his dissatisfaction. She did not report this matter to the police.
   
3. On the following day at 7.00 pm the accused questioned the victim whether she is having any extra marital affair. During this conversation he pushed the TV rack to her. After she fell down he punched her on face and kicked her on the chest. The matter was then reported to Nabua police station and the accused was charged on following counts.
   
   1. Indecently Annoying Any Person – Contrary to section 213(1)(b) of the Crimes Decree No 44 of 2009.
      
   2. Assault Causing Actual Bodily Harm – Contrary to section 275 of the Crimes Decree No 44 of 2009.
      
4. The accused initially appeared without any legal representation and indicated his willingness to seek Legal Aid assistance. The Court granted a date to facilitate his request. On 29.05.2012 the accused represented by a counsel of Legal Aid and the accused entered a 'plea of guilt'.
   
5. Section 154 of the Criminal Procedure Decree will not have any application to this case for reconciliation due to the domestic setting of the facts.
   
6. As per the medical report the complainant sustained multiple swellings and abrasions on her chest and left hand. Further it confirms the fact that her hair and eye brows were shaven at the time of examination. The injuries are sequel to the assault history given by the victim.
   
7. The accused had been arrested on 11.02.2012 and interviewed under caution.
   
8. Foregoing Summary of Facts was read over, explained and having understood the same, the accused admitted it. The Court convict the accused for each count as charged.
   
9. Section 213 (1) has a maximum sentence of one year imprisonment. According to the Penal Code, Chapter 17, the offence of 'Assault Occasioning Actual Bodily Harm' under Sections 245 attracts a maximum sentence is 05 years imprisonment. The present offence even though brought under Section 275 of the Crimes Decree 2009 is similar.
   
10. The Tariff for 'Assault Occasioning Actual Bodily Harm' under Section 245 of the Penal Code (now repealed), varies from a suspended sentence to 09 months imprisonment. (per Goundar J in Jonethani Sereka v State [2008]HAA 027/08S, 25 APR 2008)
    
11. In view of the foregoing, I select 06 months imprisonment as the starting point for each count.
    

AGGRAVATING FACTORS

12. The accused has committed the offence on his wife. She was 24 years. The vulnerability of the victim due to the domestic relationship is indeed an aggravating factor for both counts.
    
13. In the circumstance, I increase the sentence by another 03 months.
    
14. Period of imprisonment now stands at 09 months for each count.
    

MITIGATING FACTORS

15. The grounds of mitigation are as follows: the accused is 34 years old; remorseful; apologised to the victim; both parties are now living together; sought court's leniency; promised not to re offend.
    
16. I have carefully considered the summary of facts and factors rendered in mitigation and early guilty plea for the charges, a reduction of 03months is given to reflect the same.
    
17. The accused admitted three previous convictions that were recorded in 2000 and 2005. Hence the accused is not entitled to a deduction that is given to an accused person with previous good behaviour.
    
18. The final term of imprisonment now stands at 06 months for each count.
    
19. In terms of Section 26(2)(b) of the Sentencing and Penalties Decree 2009 a sentence below two years could be suspended, and applying the same principle, I suspend each sentence of 06 months imprisonment for 24 months in view of the promise the accused have made to this Court.
    
20. If the accused commits any crime and if found guilty by a Court of law, whilst serving the suspended sentence period of 24 months, the accused will be imprisoned for a term of 12 months in terms of Section 28 of the Sentencing and Penalties Decree 2009.
    
21. Further a domestic violence restraining order is in place against you with non molestation condition as per section 24(1)(b)(1) of the Domestic Violence Decree 2009 to ensure wellbeing of the victim.
22. Section 26 (3)(a)(b) of the Sentencing and Penalties Decree 2009, has been complied with, in delivering this sentence.
    
23. Twenty eight (28) days to appeal.
    

Pronounced in open Court

YOHAN LIYANAGE
Resident Magistrate

08th June 2012