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State v Kaurasi [2016] FJMC 185; Criminal Case 1639.2016 (29 September 2016)

IN THE MAGISTRATES’ COURT OF FIJI
AT SUVA

Criminal Case No: - 1639/2016

STATE

V

PATRICK KAURASI

For the Prosecution : WPC Fisher

The Accused : In person

Date of Sentence : 29^th of September 2016

SENTENCE

1. PATRICK KAURASI, you were charged with one count of Assault Occasioning Actual Bodily Harm contrary to Section 275 of the Crimes Decree No 44 of 2009.
2. You pleaded guilty yesterday and also admitted to the following facts presented by the prosecution:
   • Briefly on 08/09/16 at about 1915hrs Annie Heritage (A-1) 30 yrs, Sales Assistant worker of Kalekana Settlement was assaulted by husband Patrick Kaurasi (B-1) 30 yrs, Unemployed of the same settlement.
   • On the above date (A-1) return back home with her two children after visiting her grandmother upon reaching their house she saw the door broken into and saw (B-1) lying inside the house drunk.
   • (A-1) went inside their room when (B-1) followed her and asking what they had for dinner then (A-1) told (B-1) to have his dinner at their grandmother’s house.
   • (B-1) got angry at (A-1) and started swearing at the same time there two children got frightened and ran toward the main door while (A-1) followed them outside.
   • (B-1) approached them outside and threw one punch on (A-1) in the process (A-1) fell on the ground and (B-1) punched (A-1) twice on the mouth.
   • (A-1) reported the matter at the Lami Police Station and she was sent to hospital to be medically examined.
   • (B-1) was arrested and interviewed under caution and admitted to allegations put to him (Please refer to Q&A 30 – 32).
   • (B-1) was charged for 1 x Count of Assault Causing Actual Bodily Harm: contrary to Section 275 of the Crimes Decree No. 44 of 2009.
3. I am satisfied that your plea was voluntarily and unequivocal. Accordingly I convict you for this charge.
4. The maximum penalty for Assault Occasioning Actual Bodily Harm is 05 years imprisonment.
5. In State v Tugalala [2008] FJHC 78; HAC025S.2008S (29 April 2008)her Ladyship justice Shameem said :

“The tariff for this offence appears to range from an absolute or conditional discharge to 12 months imprisonment.”

6. As for the starting point the UK Sentencing Guidelines states that offences committed in domestic context should be regarded as being no less serious than offences committed in a non-domestic context. Therefore the starting point should be same irrespective of whether the parties are known to each other.
7. Also in LaisiasaKoroivuki v the State ( Criminal Appeal AAU 0018 of 2010) his Lordship Justice Goundar discussed the guiding principles for determining the starting point in sentencing and observed :

"In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this time. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff. If the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range".

8. Considering the gravity of offending and your culpability, I select 05 months as the starting point for this case.
9. In UK Sentencing Guidelines following are considered as aggravating factors in domestic violence cases :
   1. Abuse of trust and abuse of power ;
   2. Victim is particularly vulnerable ;
   100. Impact on children;
   4. Using contact arrangements with a child to instigate an offence ;
   5. A proven history of violence or threats by the offender in a domestic setting;
   6. history of disobedience to court orders;
   7. Victim forced to leave home.
10. When sentencing for a domestic violence a court in Fiji can consider the above aggravating factors and any other factors that would further aggravate the offence.
11. Section 4(3) of the Sentencing and Penalties Decree has to be considered also by a sentencing court in a domestic violence offence.
12. In this case I consider the following as aggravating factors :
    1. Abuse of trust and abuse of power;
    2. The children were present during the offending;
    100. This is a domestic violence offence;
    4. The accused was drunk at that time and also swore to the complainant.
13. For these aggravating factors I add 10 months to reach 15 months imprisonment.
14. In UK Sentencing Guidelines the positive good character and provocation are considered as mitigating factors.
15. In this case the you submitted following as mitigating factors:
    1. Married with 2 children;
    2. First offender ;
    100. Seeking forgiveness;
    4. Reconciled with the complainant.
16. Your reconciliation was confirmed by the complainant in the court.
17. In domestic violence offences the court has to be caution in considering these supposed reconciliations because normally the victim is not in a position to genuinely reconcile. And in this case considering that the complainant was having 2 children with the accused I am not surprised to hear about this reconciliation. But I do not consider this as a genuine and would not give weight to that.
18. For the other mitigating factors I deduct 03 months to reach 12 months imprisonment.
19. In Naikelekevesi v The State Criminal Appeal No AAU 0061 of 2007 it was observed :

“...where there is a guilty plea, this should be discounted for separately from the mitigating factors in a case”.

20. In UK Guilty Plea guidelines of 2007 it has been held that when an accused pleaded guilty at the first available opportunity the reduction is 1/3 and after a trial date is set 1/4 recommended. But when an accused pleaded guilty at the door of the court or after the trial has started he maybe entitle for only 1/10 discount.
21. You pleaded guilty on the first available opportunity and for that following the above guidelines; I deduct 1/3 to reach 08 months imprisonment.
22. Now I have to consider whether to suspend this sentence. There is no justification of your behavior on that day. When you found out that the dinner was not ready, you started assaulting your wife whilst your children were present with her. Your disgraceful behavior need to be denounced with a proper sentence.
23. Further the People need to be reminded that their partners are not slave to be subjected to these kinds of violence in homes and would be punished severely by this court to deter these from happening in future.
24. PATRICK KAURASI, I sentenced you to 08 months imprisonment for the offence of Assault Causing Actual Bodily Harm contrary to section 275 of the Crimes Decree.
25. For the safety victim, I also grant a permanent domestic violence restraining order with standard non-molestation conditions.
26. 28 days to appeal.
    

Shageeth Somaratne

Resident Magistrate