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State v Bulivono [2013] FJMC 383; Criminal Case 270.2013 (23 October 2013)

IN THE MAGISTRATE COURT OF FIJI
AT RAKIRAKI
CRIMINAL JURISDICTION
CRIMINAL CASE NO. 270/13

BETWEEN:

THE STATE

AND:

SAILOSI BULIVONO

Prosecution: WPC Poonam
Accused: In Person

SENTENCE

1. Sailosi Bulivono you pleaded guilty to the offence of Assault Occasioning Actual Bodily Harm contrary to section 275 of the Crimes Decree No. 44 of 2009.
   
2. You admitted that you were not forced to plead guilty to the charge and that you pleaded voluntarily. You also accepted the facts tendered by prosecution.
   
3. The Court after being satisfied that your guilty plea was unequivocal convicted you as charged.
   
4. The facts are you and the complainant (Ivamere Tuiono, 22yrs) were in a de-facto relationship and living separately for some time. The complainant is from Drana Village Rakiraki and you are from Vitawa Village Rakiraki. On 2nd August 2013 at 8am the complainant was at Vitawa Village. You then gave her some money and told her to return back to her village. She than questioned you as to why you brought her to your village and then telling her to go back to her village. There was a heated argument whereby you got angry and slapped once on her face.
   

The matter was reported to police. You were arrested, cautioned interviewed and then charged accordingly.

The complainant was also taken to the hospital for medical examination. The medical report shows injuries consistent with the allegation.

5. You mitigated and I take the following in your favour:
   
   • Pleaded guilty at first available opportunity.
   • You've remorseful, requested for leniency and promised not to re-appear in Court again.
     
6. I consider the aggravating features in this case as:
   
   • Lack of provocation from the complainant;
   • Breach of trust.
     
7. It should be noted that due to your relationship with the complainant the subject offence is regarded as a domestic violence offence.
   
8. Under the Crimes Decree no. 44 of 2009, the prescribed penalty for Assault Causing Actual Bodily Harm under section 275 is a maximum imprisonment term of 5 years.
   
9. The tariff for the offence of Assault Occasioning Actual Bodily Harm appears to range from an absolute or conditional discharge to 12 months imprisonment (see: State v Salote Tugalala, HAC025 of 2008). The High Court in Elizabeth Joseph v. The State [2004] HAA 030/04S and State v. Tevita Alafi [2004] HAA073/04S stated that it is the extent of the injury which determines sentence....Where there has been a deliberate assault, causing hospitalization and with no reconciliation, a discharge is not appropriate. In domestic violence cases, sentences of 18 months imprisonment have been upheld (Amasai Korovata v. The State [2006] HAA 115/06S).
   
10. In light of the circumstances of offending in this case, I commence my sentence at 9 months imprisonment.
    
11. For the aggravating factors I increase the sentence by 2 months. Your sentence stands at 11 months.
    
12. For the mitigation I reduce the sentence by 2 months. For your guilty plea I further deduct the sentence by 3 months. Your final sentence is 6 months imprisonment.
    
13. To give effect to the principle of deterrence you are sentenced to 6 months imprisonment.
    
14. I now consider whether your sentence should be suspended. You requested leniency from the Court. The Courts leniency is usually granted to first offenders. You cannot expect any leniency because you were convicted by this Court for a similar offence last year on 16th October 2012. Whilst on a suspended term you committed this offence. It seems you have taken for granted the Courts past leniency to you. Further there is no exceptional or compelling circumstance to suspend your sentence. Your sentence will not be suspended.
    
15. You are ordered to serve an immediate imprisonment term of 6 months.
    
16. In addition the Interim Restraining Orders made under section 27(2) of the Domestic Violence Decree on 11th September 2013 is now made permanent.
    
17. The said Domestic Violence Restraining Orders can only be varied, suspended or discharged by further orders of the Court.
    
18. 28 days to appeal.
    

Samuela Qica
Resident Magistrate

23rd October 2013