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State v Ratogotogo [2016] FJMC 46; Criminal Case 173.2015 (20 April 2016)

IN THE MAGISTRATES' COURT OF FIJI
AT TAVEUNI

Criminal Case No: - 173/2015

STATE

V

PAULA RATOGOTOGO

For the Prosecution: Sgt. Naidu
For the Accused: Mr. Tuicolo(LAC)
Date of Sentence : 20th of April 2016

SENTENCE

1. PAULA RATOGOTOGO , you were charged with one count of Assault Occasioning Actual Bodily Harm contrary to section 275 of the Crimes Decree No.44 of 2009 and one count of Criminal Intimidation contrary to section 375(1) (a) (1) (1v) of the Crimes Decree No 44 of 2009.
   
2. You pleaded guilty this morning and also admitted the summary of facts. According to the facts on after an argument with your wife you punched her face and also threatened to cut her to pieces.
   
3. I am satisfied about your plea and convict you for both counts.
   

The Law and the Tariff

4. The maximum penalty for Assault Occasioning Actual Bodily Harm 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. For the offence of Criminal Intimidation the penalty is 10 years imprisonment and in State V Baleinabodou[2012]FJHC 981 his Lordship Justice Temo said that an accepted tariff would be from 12 months to 04 years .
   
7. 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.
   
8. Considering the gravity of offending, I select 05 months as the starting point for the 1st count and 14 months for the 2nd count.
   

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 is the breach of trust and domestic relationship as aggravating these offences and add 03 months to reach 08 months for the 1st count and 17 months for the 2nd count.
    
12. As this is a domestic violence offence I have taken in to consideration section 4(3) of the Sentencing and Penalties Decree also.
    

Mitigating Factors

13. In UK Guidelines the positive good character and provocation are considered as mitigating factors. In this case for your past good behavior and personal mitigating factors (married with 4 children, sole bread winner) I deduct 02 months to reach 06 months for the 1st count and 15 months for the 2nd count.
    

Guilty Plea

14. 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".

15. In UK sentencing 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.
    
16. For pleading guilty at the first available opportunity I deduct 1/3 to reach 04 months for the 1st count and 10 months for the 2nd count. Considering these were committed in same transaction I order these to be concurrent.
    
17. Even though you are a first offender I do not think fully suspending this sentence is appropriate. You not only punched your wife when asked for help but also threatened to cut her to pieces. Your behavior need to be denounced. But considering the hardship that would be faced by your family I would partly suspend this sentence.
    
18. Therefore I sentenced you to 03 months imprisonment and remaining 07 months suspended for 03 years.
    
19. If you commit any offences during next 03 years you can be charge under section 28 of the Sentencing and Penalties Decree.
    
20. For the safety of the complainant I also grant a permanent domestic violence restraining order with standard non-molestation conditions.
    
21. 28 days to appeal
    

Shageeth Somaratne
Resident Magistrate