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State v Ratu [2012] FJMC 143; Criminal Case 52.2012 (25 June 2012)

IN THE RESIDENT MAGISTRATE'S COURT OF NAUVA

Criminal Case No: 52/2012

STATE

V

SAIMONI RATU

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

SENTENCE

1. You SAIMONI RATU, 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 the second count.
   
2. You pleaded guilty to the both counts on 25 June 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 both offences.
   
3. Summary of facts, as admitted by you before the court, revealed that both these offences were committed on 22 January 2012, at Naitata, Navua in the Central Division.
   
4. Further, the summary of facts revealed, that you assaulted the complainant (your de facto partner) causing her injuries as per the medical report. Also you damaged the properties of your step father to the total value of $30.00.
   
5. When the charge was first read, you admitted committing these offences, but informed that you have reconciled with the complainant. The complainant was present in the court and confirmed that.
   
6. Under the Sec 154(1) of the Criminal Procedure Decree both these 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 counselling 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.

And if parties have reconciled the court can stop the proceedings for a period of time or dismiss the case.

7. But according to the summary of facts the victim is your defector partner. Therefore both these offences come under the definition of domestic violence. The sec 154(6) clearly states that this section does not apply to Domestic Violence.
   

(6) This section does not apply to offences of domestic violence, as defined by the Domestic Violence Decree 2009.

8. The Court cannot accept the reconciliation and dismiss the proceedings since there is a statutory prohibition contained in section 154 (6) of the Criminal Procedure Decree, 2009.
   
9. 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.
   
10. The maximum sentence for Assault Occasioning Actual Bodily Harm is 5 years imprisonment.
    
11. The tariff for "Assault Occasioning Actual Bodily Harm" varies from suspended sentence to 9 months imprisonment. (Per Gounder J in "Jonetani Sereka vs State 2008 HAA 027/08S, 25 April 2008).
    
12. In "State vs Anjula Devi" Criminal Case No. 4 of 1998 Lab, it was held that the tariff for "Assault Occasionin Actual Bodily 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 assault.
    
13. In "Elizabeth Joseph vs State" Criminal Appeal HAA 030 of 2004S, the accused stabbed her partner's wife with a pen knife. The victim received a cut on the finger. A sentence of 4 months imprisonment was upheld on Appeal
    
14. In the case of "State vs Tevita Alafi" 2004 HAA 073/04S, it was held that it is the extent of the injury which determines the sentence.
    
15. In the case of "Amasai Korovata vs The State" F20061 HAA 115/06S in domestic violence cases, sentences of 18 months imprisonment have been upheld.
    
16. According to the section 369(1) of the Crime decree the maximum sentence that could be imposed against you for the offence of Damaging Property is for two years imprisonment.
    
17. 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.
    
18. 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.
    
19. After considering the tariff for the both offences and summary of facts in this case, I select 06 months as the starting point for both counts in your sentence.
    

Aggravating Factor

20. As I noted above the victim is your defector partner. Therefore both these offences come under domestic violence. Also when you assaulted her you were drunk. I take these as aggravating factors and increase 03 months from both counts. Now your sentence stands for 09 months for both counts.
    

Mitigating Factors

21. I take following grounds as mitigating factors in this case.
    
    1. Married with a child
    2. reconciled
    3. Seek forgiveness.
    4. Paid the full damage to your step father.
       
22. 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). Therefore for both counts your sentence stands for 06 months.
    
23. For the above mitigating factors I deduct another 1 month from your both counts. Now your sentence stands for 05 months for both counts.
    
24. Now your final sentence is 05 months 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.
    
25. In O' Keefe (1969 1 ALL ER 426, the English Court of Appeal noted that

"The court must go through the process of eliminating other possible courses such as absolute discharge, conditional discharge, probation order, fines and then say to itself: this is a case for imprisonment required, or can I give a suspended sentence?"

26. In this case considering the nature of the offences I believe absolute discharge, conditional discharge, probation order, fines is not appropriate. But should I suspend your sentence.
    
27. You are a young offender as well as a first offender. In Prasad v The State [1994] FJHC 132; Haa0032j.94s (30 September19994) S W Kepa J enunciated that the fact that Appellants are first offende60;ought to beto be a very strong mitigating factor in their favour. A prison sentence ought to be the last resort after the court has explored and exhausted aler alternative sentences. (Emphasize is mine).
    
28. 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 ders."
    
    
29. Therefore I believe you should be given a e to rehabilitate away from a custodial sentence. Accordingrdingly I sentence you to 06 months for both counts and suspend your sentence for 1 year.
    
30. 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.
    
31. Both these offences are listed as a domestic violence offence in Schedule 1A of the Domestic Violence Decree 2009.
    

Section 24 (a) (b) (i) of the Decree provides:

(a) Subject to subsection (3) but not withstanding any other provision in this

Decree –

(b) where a person –

(i) pleads guilty to, or is found guilty of, an offence which is a domestic violence offence;

(ii) the Court must make a domestic violence restraining order under this Decree for the safety and well being of the person against whom the offence or alleged offence was committed;

(iii) where subsection (1) applies the Court need not make an order under this section if satisfied that, having regard to the safety and wellbeing of the person for whose protection the order would be made, the order is not required.

32. Section 24 (1)(b)(i) is a mandatory provision. In this case, since the accused is convicted for domestic violence offences and the safety and wellbeing of the victim an issue, the Court has no discretion but to issue a restraining order against the accused in addition to the sentence.
    

I issue a restraining order for the safety and wellbeing of the victim;

NON MOLESTATION

In accordance with section 27 of the Decree, the following standard non-molestation conditions apply to this Order: The terms of the order are that the accused must not:

• Physically assault the victim.

• Threaten to physically assault the victim.

• Damage or threaten to damage any property of the victim.

• Threaten, intimidate, or harass the victim.

• Behave in an abusive, provocative or offensive manner towards the victim.

• Encourage any person to engage in abusive, provocative or offensive manner towards the victim.

33. Under sec 28 of the Decree the above order will be applicable to victim's child too.
    

28 days to appeal.

25/06/2012

H.S.P.Somaratne
Resident Magistrate, Navua