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State v Swami [2012] FJMC 147; Criminal Case 157.2012 (3 July 2012)

IN THE RESIDENT MAGISTRATE’S COURT OF NAVUA

Criminal Case No: - 157/2012

STATE

V

RONALD RAJESH SWAMI

For Prosecution: - Sgt .Lenaitasi

Accused: - In person

SENTENCE

1. You RONALD RAJESH SWAMI were charged for the offence of, Assault Occasioning Actual Bodily Harm contrary section 275 of the Crime Decree No 44 of 2009.

2. You elected to represent by yourself and pleaded guilty for the said offence on 03 July 2012.

3. I am satisfied that you fully understand legal effect of your plea and your plea was voluntary and free from influence. Wherefore I convict you for the said offence.

Facts in this case

4. On 02 April 2012 you returned home in your van. The complainant (your wife) asked whether if you had gone to Suva in the van but you denied that. After a while you grabbed the complainant and assaulted her causing the injuries as per the medical report.

5. You admitted the above facts.

6. The medical report was tendered and the doctor found that the complainant got bruises in her left arm and lower body.

The Law and the Tariff for Assault Occasioning Actual Bodily Harm

7. The sec 275 says maximum penalty for the offence is 05 years imprisonment.

8. His Lordship 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 assault (Sereka v State [2008] FJHC 88; HAM 027)

Aggravating factors

7 This is a domestic violence. The complainant is your wife. Also you assaulted her without any provocation.

Mitigating factors

9. I consider following points as mitigating factors in this case

1. Married with children
2. Seeks forgiveness
3. Reconciled with the complainant
   

10. You informed the court that you have reconciled with the complainant. The complainant was present and confirmed that.

11. In a normal scenario these kinds of offences can be reconciled under sec 154 of the Criminal Procedure Decree.

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.

12. But sec 154(6) of the Criminal Procedure Decree clearly says that this sec does not apply to domestic violence Offences. Therefore even though you have reconciled I am not going to act under sec 154 (3) of the Criminal Procedure Decree.

13. But the reconciliation has been taken as a mitigating factor in this case.

14. Now I will decide suitable starting point for your sentence. After considering the facts in this case and tariffs I take 06 months as your staring point.

15. For the aggravating factors I increase the sentence by 03 months. Now your sentence stands for 09 months imprisonment.

16. 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.

17. I reduce further 02 months for other mitigating factors to reach the period of 04 months.

18. 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.

19. You are not a first offender. But I note that your last conviction was in 2007.

20. Also I take in to my consideration sec 15(3) of the Sentencing and Penalties Decree.

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)

21. Therefore I believe you should be given a final chance to rehabilitate away from a custodial sentence. Accordingly I sentence you to 04 months imprisonment and suspend that for 02 years.

22. If you commit any crime during that 02 years and found to be guilty by a court you have to serve this prison sentence.

23 Now I will turn my attention to the complainant in this case. The Domestic Violence Decree of 2009 has specific provisions for these situations. 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.

24. Considering the summary of facts in this case I believe I should act under sec 24 of the Domestic Violence Decree of 2009.

25. Therefore I also grant a permanent Domestic violence restraining order with standard non molestation conditions in favor of the complainant.

26. 28 days to appeal

03/07/2012

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H.S.P.Somaratne
Resident Magistrate, Navua