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State v Momoli [2013] FJMC 218; Criminal Case 116.2013 (30 May 2013)

IN THE RESIDENT MAGISTRATE’S COURT OF FIJI
AT NAVUA

Criminal Case No: -116/2013

STATE

V

SAIMONI MOMOLI

For Prosecution : - Mr. Paka from the ODPP
Accused : - In person

SENTENCE

1. SAIMONI MOMOLI, you were charged in this Court for the offence of Act With Intent to Cause Grievous Bodily Harm contrary to section 255(1) (a) of the Crimes Decree.
   
2. This is an Indictable offence and the High Court gave the extended jurisdiction to hear this case.
   
3. On 11 April 2013 you waived right to counsel and pleaded guilty for the charge. After numerous adjournments the prosecution tendered the summary of facts and medical report to the Court.
   
4. According to summary of facts on 14 March 2013 at Naboutini village, Serua you had an argument with your wife and attacked her with a cane knife causing injuries to her arm and scalp. You admitted these facts.
   

The Law and the Tariff

5. The maximum penalty for this offence is life imprisonment.
   
6. In State v Chand (2011) FJHC 19 HAC 07 of 2011 (17 January 2011) His Lordship Justice Madigan stated:
   

"The maximum penalty for the offence of act with intent to cause grievous harm is imprisonment for life. This is an offence relatively new to the jurisdiction, introduced by the Crimes Decree 2009 on February 1st of 2010. Until a body of sentencing authorities is secured, it is helpful to rely on the analogous section 224 of the old Penal Code, the offence of an act intended to cause grievous harm. It was established in Viliame Cavubati – HAA 80 of 2010 by Shameem J. that the accepted tariff for this offence should range from a suspended sentence through to 2 ½ years. This Court said in Amasi Korovata – HAC 11 of 2009 that the range now should extend up to 4 to 5 years."

7. Considering the facts in this case I select 02 years as the starting point for your sentence.
   

Aggravating Factors

8. The victim is your wife making this a domestic violence. For this I add one year to reach 03 years imprisonment.
   

Mitigating Factors

9. For pleading guilty in the first available opportunity I follow the decision in Vilimone v State [2008] and deduct 1/3 from your sentence to reach 02 years imprisonment.
   
10. You are 27 years old and married with 02 children. You have reconciled with the victim. For these I deduct another 12 months from your sentence to reach 12 months imprisonment.
    
11. For the time you spent in remand I deduct further 02 months to reach 10 months.
    
12. You are not a first offender and not entitled for discounts for that.
    
13. This Court is mindful that under section 26 (2) (b) of the Sentencing and Penalties Decree it can suspend a sentence which is below 02 years.
    
14. In State v Dinesh Chand (2002) FJCA 50; AAU 0027.2000S (1 March 2002) the Fiji Court of Appeal said:
    

"...wounding another person with a weapon should, almost always, be visited with immediate imprisonment..."

15. Therefore I do not see any reason to fully suspend your sentence. But considering your early guilty plea as well as your reconciliation you will be given a partly suspended sentence.
    
16. Therefore I sentence you to 02 months imprisonment for this offence. Remaining 08 will be suspended for 02 years.
    
17. If you commit any crime during operational period of your suspended sentence you can be charged under section 28 of the Sentencing and Penalties Decree.
    
18. Also this Court issues a permanent domestic violence restraining order with a standard non molestation condition in favor of the victim
    
19. Since this court is exercising the extended jurisdiction of the High Court in your case, both parties may appeal against this sentence within 30 days with leave to the Court of Appeal.
    

30 March 2013

H.S.P.Somaratne
Resident Magistrate, Navua