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State v Vunibaka [2016] FJMC 207; Criminal Case 1435.2016 (21 October 2016)

IN THE MAGISTRATES’ COURT OF FIJI
AT SUVA

Criminal Case No: - 1435/2016

STATE

V

TANIELA VUNIBAKA

For the Prosecution : WPC Fisher

For the Accused : Ms.Daunivesi(LAC)

Date of Sentence : 21^stof October 2016

SENTENCE

1. TANIELA VUNIBAKA, 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 and admitted the summary of facts presented by the prosecution. According to the summary of facts this incident happened as Sawaieka Village, Gau. Your wife was in the residence putting the son to sleep, when you came and punched on her left ear. The medical report confirms the injuries.
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, 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. This is a domestic violence offence;
    100. The child was in the room when the assault was committed.
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 your counsel submitted following as mitigating factors:
    1. 21 years old ;
    2. Married with a 09 months old child ;
    100. First offender ;
    4. Seeking forgiveness.
16. For the other mitigating factors I deduct 03 months to reach 12 months imprisonment.
17. After getting the legal aid without wasting the time you pleaded guilty and for that I deduct 1/3 to reach 08 months imprisonment.
18. Now I have to consider whether to suspend this sentence. Considering your early guilty plea, past good behavior and young age I am prepared to give you a non-custodial sentence which would also allow you the chance to rehabilitate.
19. TANIELA VUNIBAKA, I sentenced you to 08 months imprisonment for this charge and suspended that for 03 years.
20. For the safety victim, I also grant a permanent domestic violence restraining order with standard non-molestation conditions.
21. 28 days to appeal.

Shageeth Somaratne

Resident Magistrate