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State v Bura [2016] FJMC 30; Criminal Case 433.2016 (9 March 2016)

IN THE MAGISTRATES' COURT OF FIJI
AT SUVA
Criminal Case No: - 433/2016

STATE

V

SIRILO WILISONI BURA

For the Prosecution: Sgt.Lenaitasi
The Accused: In person
Date of Sentence : 09th of March 2016

SENTENCE

1. SIRILO WILISONI BURA, you pleaded guilty in this Court to one count of Assault Occasioning Actual Bodily Harm contrary to section 275 of the Crimes Decree.
   
2. You also admitted the following summary of facts:
   

• On Sunday 06/03/2016 at about 1600hours at Valenicina settlement, Lami, Makarita Loalase [accused] 25yrs, a Customer Service Representative with Mindpearland resides at Valenicina was at home with her husband, Sirilo Wilisoni Bura [B-1] 28yrs, unemployed of Valenicina, Lami.

• [A-1] told [B-1] to wait at home as she wanted to go down to her aunty's place which is just about 10 meters away from where they live.

• [B-1] was peeling the potatoes when [A-1] told him in a polite manner that she will go to her aunty's place and when she returns home, he can go down to play at the taxi base.

• An argument started between [A-1] and [B-1] and in the process, [B-1] threw the kitchen knife which he had used to peel potatoes on [A-1]. [A-1] tried to evade the kitchen knife but was late as it hit her right buttock and injured and injured her.

• Matter was reported to the police where investigation was carried out. [A-1] was medically examined by the doctor on 6/3/16 and after treatment, she was sent home as her condition was generally good.

• [B-1] was arrested and interviewed under caution and admitted throwing an object which was a stick and not the kitchen knife.

• However, later in the evening at 2258hrs, [B-1] accompanied the police to his place at Valenicicina and handed to the police the kitchen knife which he threw on [A-1].

• [B-1] was charged for Assault Causing Actual Bodily Harm: Contrary to Section 275 of the Crimes Decree no. 44 of 2009.

3. I am satisfied that you made your plea on your own free will and convict you for this offence.
   

The Law and the Tariff

4. The maximum penalty for Assault Occasioning Actual Bodily Harm under the Crimes Decree is 05 years imprisonment.
   
5. In State vs Anjula Devi Criminal Case No. 4 of 1998 Lab, it was held that the tariff for "Assault Occasioning Actual Bodily Harm" ranges from a suspended sentence where there is a degree of provocation and no weapon used, to 9 months imprisonment or the more serious cases of assault.
   
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. Accordingly having considered the gravity of offending I select 06 months as the starting point for this offence.
   
8. As this is a domestic violence offence I have taken in to consideration section 4(3) of the Sentencing and Penalties Decree also.
   

Aggravating Factors

9. In UK 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. In this case I find the breach of trust, using a kitchen knife to cause injuries are aggravating this offence and add 10 months to reach 16 months imprisonment.
    

Mitigating Factors

12. In UK Guidelines the positive good character and provocation are considered as mitigating factors. In this case there is no evidence about provocation even though there was an argument. But for your past good behavior I deduct 04 months to reach 12 months for imprisonment.
    
13. You informed me that you have reconciled and the complainant also confirmed that. Having observed her in the Court I accept this as genuine reconciliation and deduct 02 months to reach 10 months imprisonment.
    

Guilty Plea

14. For pleading guilty at the first available opportunity following the UK sentencing guidelines of 2007 as well as practice in Fiji I deduct 1/3 to reach 06 months imprisonment.
    
15. Now I have to consider whether to suspend this sentence. Even though you are a first offender I do not think a suspend sentence is appropriate in this case. You assaulted your wife with a kitchen knife and she is lucky for escaping with these injuries. Your behavior is not acceptable and warrants a custodial sentence.
    
16. SIRILO WILISONI BURA, I sentence you to 06 months imprisonment for the offence of Assault Causing Actual Bodily Harm contrary to section 275 of the Crimes Decree.
    
17. For the safety of the complainant I also grant a permanent domestic violence restraining order with standard non-molestation conditions.
    
18. 28 days to appeal
    

Shageeth Somaratne
Resident Magistrate