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State v Toge [2013] FJMC 152; Criminal Case 150.2013 (11 April 2013)

IN THE RESIDENT MAGISTRATE'S COURT OF FIJI
AT NAVUA

Criminal Case No: - 150/2013

STATE

V

VARASIKO TOGE

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

SENTENCE

1. VARASIKO TOGE, you were charged for the offence of Assault Occasioning Actual Bodily Harm contrary to section 275 of the Crimes Decree.
   
2. You waived right to legal counsel and pleaded guilty for the charge on 11 April 2013. You also admitted the summary of facts presented by the prosecution.
   
3. According to the summary of facts on 07 March 2013 you had an argument with your brother and later assaulted him causing injuries.
   
4. This Court is satisfied about your plea and convicts you for the offence.
   

The Law and the Tariff

5. The maximum penalty for the offence of Assault Occasioning Actual Bodily Harm offence is 05 years imprisonment.
   
6. In Sereka v State [2008] FJHC 88; HAM 027 it was held 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.
   
7. Considering the facts in this case I take 06 months as the starting point of your sentence.
   

Aggravating Factors

8. The victim is your brother making this domestic violence offence. For this I add 03 months to reach 09 months imprisonment.
   

Mitigating Factors

9. You pleaded guilty on the first day and therefore are entitled for 1/3 reduction of your sentence. Now your sentence would be 06 months imprisonment.
   
10. You are 58 years old married with children. You seek forgiveness from this Court. For these mitigating factors another 02 months will be deducted from your sentence to reach 04 months imprisonment.
    
11. You are not a first offender and therefore will not get any discount for your past behavior.
    
12. Now your final sentence would be 04 months imprisonment. I am mindful that under section 26 (2) (b) of the Sentencing and Penalties Decree I can suspend a sentence which is below 02 years.
    
13. You have got a one conviction committed on 2007. But you saved Court's resources by pleading guilty at the first chance you got. I believe you need to be given a chance to reform.
    
14. Therefore I sentence you to 04 months imprisonment for the Offence of Assault Occasioning Actual Bodily Harm and suspend that sentence for 01 year.
    
15. You have to be in good behavior during the next 01 year. If you commit any crime during that period you can be charged under section 28 of the Sentencing and Penalties Decree.
    
16. Also this Court grants a permanent domestic violence restraining order with standard non molestation conditions in favor of the victim.
    
17. 28 days to appeal
    

11 April 2013

H.S.P.Somaratne
Resident Magistrate, Navua