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State v Ratnam - Sentence [2012] FJMC 137; Criminal Case 169.2012 (20 June 2012)

IN THE RESIDENT MAGISTRATE’S COURT OF NAVUA

Criminal Case No: - 169/2012

STATE

V

AVINESH RATNAM

For Prosecution : - Sgt .Lenaitasi
Accused : - In person

SENTENCE

1. You AVINESH RATNAM were charged for the offence of, Assault Occasioning Actual Bodily Harm which is punishable under section 275 of the Crime Decree No 44 of 2009 and carries a maximum penalty up to 5 years of imprisonment.
   
2. You pleaded guilty for the said offence on 21 June 2012 on your own will and accord. I am satisfied that you fully comprehended the legal effect of your plea and your plea was voluntary and free from influence. Wherefore I convict you for the said offence.
   
3. It was revealed in the Summery of fact, which you admitted in open court, that you committed this offence on 21 May 2012 at Vakabalea ,Navua in the Central Division. You went to your father’s house with a girl. Your father told you not to keep her there and you got angry and assaulted him causing injuries as per the medical report.
   
4. When the charge was first read, you told the court that you have reconciled with your father. According to the Sec 154 of the Criminal Procedure Decree these kinds of offences can be reconciled.
   

154. — (1) In the case of any charge for an offence of common assault or assault occasioning actual bodily harm or criminal trespass or damaging property the court may, in such cases which are —

(a) substantially of a personal or private nature; and

(b) not aggravated in degree —

promote reconciliation and encourage the settlement of the proceedings in an amicable way, on terms of payment of compensation or on other term approved by the court, which may involve —

(i) the giving of an apology in any appropriate manner;

(ii) the giving of a promise or undertaking not to re-offend, or to respect

the rights and interests of any victim;

(iii) mandatory attendance at any counseling or other program aimed at rehabilitation; or

(iv) a promise or undertaking to alter any habits or conduct, such as the

consumption of alcohol or the use of drugs.

(2) A court shall only proceed in accordance with sub-section (1) if it is satisfied that it is in the interests of any victim of crime to proceed in such a manner, and the court shall ensure that the victim of the violence does not submit to any proceedings being undertaken in accordance with this section by reason of pressure being exerted in any form.

(3) Upon proceeding in accordance with this section the court may then —

(a) order the proceedings to be stayed for a specified period of time upon

the offender entering into any bond to comply with the terms imposed by the court under sub-section (1); or

(b) dismiss the proceedings.

5. But the victim is your father and Sec 154(6) clearly says this section does not apply to offences of domestic violence. But I will consider the reconciliation as a mitigating factor when deciding your final sentence.
   
6. Now I proceed to determine an appropriate starting point and sentence for you upon considering general principles of sentencing under Section 15 (3) of the Sentencing and Penalties Decree and objectives and purposes of sentencing under section 4 (1) and 4 (2) of the Sentencing and Penalties Decree.
   
7. In Sereka v State [2008] FJHC 88; HAM 027 His Lord Ship justice Goundar held out that the tariff for assault occasioning actual harm ranges from a suspended sentence where there is a degree of provocation and no weapon used, to 9 months imprisonment for the more serious cases of assaul.t
   
8. Upon considering above mentioned legal precedent on Tariff I select 06 months as the starting point for your sentence.
   

Aggravating factors

9. The victim is your father. Therefore this come under domestic violence .Also you committed this offence in your father’s house .I take these as aggravating factors and increase your sentence by 03 months. Now your sentence stands for 09 months.

Mitigating factors

10. I consider following mitigating factors which were brought before me in your mitigation submission.
    
    1. 26 years old
    2. Single
    3. Reconciled with the complainant
       
11. Since you have pleaded guilty in the first available instance you are entitled for a reduction of 1/3 of the total period of imprisonment. (Akili Vilimone v State). There by your sentence stands for 06 months.
    
12. I reduce further 01 month for other mitigating factors to reach the period of 05 months.
    
13. 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 first offender. 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."
    
15. Also in Sec 15(3) of the Sentencing and Penalties Decree says that court has to consider all other options and the prison sentence should be the last resort.
    

As a general principle of sentencing, a court may not impose a more serious sentence unless it is satisfied that a lesser or alternative sentence will not meet the objectives of sentencing stated in section 4, and sentences of imprisonment should be regarded as the sanction of last resort taking into account all matters stated in this Part (Emphasis mine).

16. What are the options available for the court? The sec 15 (1) set down the range

of the sentences court can impose .They are as follows

(a) record a conviction and order that the offender serve a term of

imprisonment;

(b) record a conviction and order that the offender serve a term of

imprisonment partly in custody and partly in the community;

(c) record a conviction and make a drug treatment order in accordance with regulations made under section 30;

(d) record a conviction and order that the offender serve a term of

imprisonment that is wholly or partly suspended;

(e) with or without recording a conviction, make an order for community

work to be undertaken in accordance with the Community Work Act 1994 or for a probation order under the Probation of Offenders Act [Cap. 22];

(f) with or without recording a conviction, order the offender to pay a

fine;

(g) record a conviction and order the release of the offender on the adjournment of the hearing, and subject to the offender complying with certain conditions determined by the court;

(h) record a conviction and order the discharge of the offender;

(i) without recording a conviction, order the release of the offender on

the adjournment of the hearing, and subject to the offender complying with certain conditions determined by the court;

(j) without recording a conviction, order the dismissal of the charge; or

(k) impose any other sentence or make any other order that is authorized under this Decree or any other Act.

16. Considering the summary of facts in this case and your mitigation I believe you should be a given a chance to rehabilitate away from a custodial sentence and this is fit and proper case to act under Sec 15(d) of the Sentencing and Penalties Decree.

17. Accordingly I sentence you to 05 months imprisonment and suspend that sentence to 02 years.
    
18. If you commit any crime during the period of 02 years and found guilty by the court you are liable to be charge and prosecute for an offence in pursuant of section 28 of the Sentencing and Penalties Decree.
    
19. Also I grant a permanent Domestic violence restraining order with standard non molestation condition in favor of the complainant according to sec 24 (1) (b) (1) of the Domestic Violence Decree 2009.
    
20. 28 days to appeal
    

20/06/2012

H.S.P.Somaratne
Resident Magistrate, Navua