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State v Mistry [2012] FJMC 50; Criminal Case716.2011 (3 April 2012)

IN THE RESIDENT MAGISTRATE'S COURT
AT SUVA

Criminal Case No; 716/2011

STATE

V

MICHAEL GABRIEL MISTRY

Prosecution : Cpl Temesi, Police prosecutor.
Accused : in person.

SENTENCE

1. You, Michael Gabriel Mistry are here today to be sentenced following the admission of 'guilt' on your own accord and free will in this Court on 12.03.2012, for committing the offence of 'Assault Occasioning Actual Bodily Harm' under Sections 275 of the Crimes Decree 2009.
   
2. This is a reconcilable offence. However, the prosecution informed Court that the complainant of the case is not willing to reconcile.
   
3. According to the summary of facts, this incident had been occurred as a result of provocation. On 06.04.2010 an argument had taken place between the accused and the complainant over a cutting down of a tree branch near complainant's place. The accused had cut a tree branch to use in selling his fish.
   
4. The accused (20 years) challenged the complainant (26 years) for a fight. When the complainant came out the accused punched twice on his face. The matter was reported to Lami police station and you were arrested and interviewed under caution where you admit the offence.
   
5. The Summary of Facts was read over, explained and having understood the same, you admitted it.
   
6. According to the Penal Code, Chapter 17, the offence of 'Assault Occasioning Actual Bodily Harm' under Section 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.
   
7. The Tariff for 'Assault Occasioning Actual Bodily Harm' under Section 245 of the Penal Code (now repealed), varies from a suspended sentence to 09 months imprisonment.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)
   
8. In view of the foregoing, I select 06 months imprisonment as the starting point for your sentence.
   

AGGRAVATING FACTORS

9. There are no aggravating factors in this incident.
   
10. Hence your period of imprisonment will remain at 06 months.
    

MITIGATING FACTORS

11. The grounds of mitigation are as follows: you are 21 years old; first offender; earns about $170 per week; remorseful; seeks court's leniency; extended apologies to the victim in court; promised not to re offend.
    
12. I have carefully considered the summary of facts and factors rendered in mitigation and for your early guilty plea for the charge, a reduction of 03months ( 1/3 of your total term of imprisonment- Akili Vilimone v State Cr.App. HAA 131/2007) is given.
    
13. Your term of imprisonment now stands at 03 months.
    
14. 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 your sentence of 03 months imprisonment for 12 months in view of the promise you have made to this Court.
    
15. If you commit any crime and if found guilty by a Court of law, whilst serving the suspended sentence period of 12 months, you will be imprisoned for a term of 03 months in terms of Section 28 of the Sentencing and Penalties Decree 2009.
    
16. Section 26 (3)(a)(b) of the Sentencing and Penalties Decree 2009, has been complied with, in delivering this sentence.
    
17. Twenty eight (28) days to appeal.
    

Pronounced in open Court

YOHAN LIYANAGE
Resident Magistrate
Suva.
03rd day of April 2012