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State v Wainidaliga [2012] FJMC 151; Criminal Case 630.2012 (10 July 2012)

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


Criminal Case No; 630/2012


STATE


V


SAKIUSA WAINIDALIGA


Prosecution: Cpl Reddy, Police Prosecutor.


Accused: In person.


SENTENCE


1. Complainant victim (identity suppressed) of this case has been your de-facto wife. She was 22 and engaged in domestic duties. On 11.09.2011 you came to her brother's place searching for her. This was around 7 in the morning. You forcefully took her with you and started punching her on the way. After assaulting her you left her on the roadside and went away.


2. She reported this matter to the police and shortly she was medically examined. The medical report reflects the impact of your assault. Bleeding from nose, right ear and lip were present when she was examined even after two hours of the assault. Her clothes were soaked with blood. There were bruisers on her body.


3. It appears that the Medical opinion is consistent with the incident.


4. You were arrested and interviewed under caution. The allegation was admitted during the caution interview.


5. This incident led the police investigators to charge you on the following count.


  1. Assault Causing Actual Bodily Harm – Contrary to section 275 of the Crimes Decree No 44 of 2009.

6. You initially appeared without any legal representation and indicated willingness to seek Legal Aid assistance. The Court granted a date to facilitate your request. On 19.06.2012 you decided to waive your right to have a counsel. Further you went on to enter a 'plea of guilt'. The Court is satisfied on the voluntariness of your plea.


7. 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. This Court further proceeded to issue an interim domestic violence restraining order against you for the well being of the victim until the conclusion of this case.


8. Foregoing Summary of Facts was read over, explained and having understood the same, you admitted it. This Court convicted you for the offence.


9. The Penal Code offence of 'Assault Occasioning Actual Bodily Harm' under Sections 245 attracted a maximum sentence of 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] FJHC 88 HAA027.20008, 25 APR 2008)


11. In view of the foregoing facts and the sentencing guidelines stipulated in section 4 (3) of the Sentencing and Penalties Decree 2009, I select 07 months imprisonment as the starting point for your sentence.


AGGRAVATING FACTORS


12. The victim is the de-facto wife of you and she was 22 years old. The vulnerability of the victim due to the domestic relationship is indeed an aggravating factor for this offence.


13. You left her on the roadside after the assault.


14. Although she was not admitted to the hospital multiple bleeding injuries will aggravate the offence.


15. In the circumstance, I increase the sentence by another 03 months.


16. Period of imprisonment now stands at 10 months.


MITIGATING FACTORS


17. Your early guilty plea takes 3 months of your sentence off.


18. In your mitigation submission, you stated that you are a 23 year old, single, unemployed person. You have sought forgiveness from the complainant victim. I reduce another one month to reflect your said personal circumstances.


19. The day you pleaded guilty to the charge the victim was present in Court. She informed that although you sought forgiveness she is not willing to accept it and reconcile. She left you after the incident and informed she will never go back. She further informed Court that she came to witness the progress of the case.


20. The effect of your violence can be envisaged from her decision to leave you and your relationship eternally. The legal system does not wish to intervene in to the relationships of the persons. There can be disagreements and differences between parties. And also there should be some room for the parties to resolve their own problems. But it must be free from any physical or physiological violence.


21. It is the paramount duty of domestic legal framework to ensure a violence free household.


22. Your final term of imprisonment is now stands at 6 months.


23. In terms of Section 26(2)(b) of the Sentencing and Penalties Decree 2009 a sentence below two years could be suspended by this Court.


24. Section 4(1) (c) and (e) of the Sentencing and Penalties Decree 2009 state that the Court should deter offender and the other persons of the community from committing the same or similar offences. And also it is important to denounce such crimes.


25. You are a young first offender. These circumstances warrant a non custodial sentence. On the other hand the Court has to consider an intervention to the increasing number of domestic violence cases. A domestic relationship of parties does not give any kind of authorization to either party to use violence to solve their problems. The offenders of such should bear in mind that the Court will act strictly even on the first offenders.


26. Sakiusa Wainidaliga this Court is not inclined to suspend your sentence. Accordingly you will serve six months in the prison.


27. Further the interim domestic violence restraining order that was issued by this Court will have permanent effect on you with non molestation condition as per section 24(1)(b)(1) of the Domestic Violence Decree 2009 to ensure wellbeing of the victim.


28. Twenty eight (28) days to appeal.


Pronounced in open Court


Yohan Liyanage
Resident Magistrate


10th July 2012


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