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State v Peters [2016] FJMC 67; Criminal Case 136.2016 (17 June 2016)

IN THE MAGISTRATES’ COURT OF FIJI
AT SUVA

Criminal Case No: - 136/2016

STATE

V

GEORGE PAUL PETERS

For the Prosecution: Cpl Shaw

For the Accused: Ms.Vuli Savou

Date of Sentence : 17th of June 2016

SENTENCE

1. GEORGE PAUL PETERS, you were found guilty after a hearing to one count of Assault Occasioning Actual Bodily Harm contrary to section 275 of the Crimes Decree No 44 of 2009 and one count of Breach of Domestic Violence Restraining Order contrary to section 77(1) of the Domestic Violence Decree.
2. During the hearing it was proved that on 17^th January 2016 you punched your wife causing injuries. At that time there was a Domestic violence restraining order against you and you also breached that order by offending.
3. The learned defence counsel in her comprehensive written mitigation asked for a non-conviction based on your employment and your future.
4. But it has been held that non-conviction would be given only for morally blameless people or technical breaches (State v Nayacalagilagi (2009) FJHC 73; HAC165.2007 (17th March 2009), Guidelines by his Lordship Chief Justice Gates in State v Batiratu [2012] FJHC 864; HAR001.2012 (13 February 2012). You do not fall in to any of these categories
5. . Further the article 26 of the 2013 Constitution states that every person is equal before the law. Therefore there should not be special treatment for you when charged with a domestic violence offence that would not be applicable to another person. Accordingly I convict you for both offences.

The Law and the Tariff

6. The maximum penalty for Assault Occasioning Actual Bodily Harm is 05 years imprisonment.
7. 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.”

8. For Breach of Domestic Violence Restraining Order the prescribed penalty is $1000 /12 months imprisonment.
9. In Koroivuki v. State [2013] FJCA 15; AAU 0018.2010 (5 March 2013) his Lordship Justice Suresh Chandra said:

"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 stage. 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."

10. 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.
11. Considering the gravity of offending, I select 06 months as the starting point for your 1^st count (Assault Causing Actual Bodily Harm).
    

Aggravating Factors

12. 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 .
13. When sentencing for a domestic violence, the courts in Fiji can consider the above aggravating factors and any other factors that would further aggravate the offence.
14. Now I consider section 4(3) of the Sentencing and Penalties Decree which states :

“(3) In sentencing offenders for an offence involving domestic violence, a court must also have regard to —

(a) any special considerations relating to the physical, psychological or other characteristics of a victim of the offence, including —

(i) the age of the victim;

(ii) whether the victim was pregnant; and

(iii) whether the victim suffered any disability;

(b) whether a child or children were present when the offence was committed, or were otherwise affected by it;

(c) the effect of the violence on the emotional, psychological and physical wellbeing of a victim;

(d) the effect of the offence in terms of hardship, dislocation or other difficulties experienced by a victim;”

15. By assaulting your wife you breached the trust placed on you by her. Also she was pregnant at that time and was carrying your child in her arm. Because of your assault she has to leave the home. I consider these as aggravating offence and add 10 months to reach 16 months imprisonment.

Mitigating Factors

16. In UK Sentencing Guidelines the positive good character and provocation are considered as mitigating factors.
17. In this case even though your counsel tried to show that you were provoked by your wife, evidence shows that you were in the bed room with another female and when she tried to open the door you assaulted her. Therefore I do not find merit about this argument.
18. But I consider your past good behavior and personal mitigating factors (married with a 5 children, looking after elderly parents) as valid factors and deduct 04 months to reach 12 months imprisonment.
19. Considering all the circumstances, I sentenced you to 02 months imprisonment for the Breach of DVRO and made it concurrent to the 1^st count.
20. Now I have to consider whether to suspend your sentence. Section 4(3) (e) of the Sentencing and Penalties Decree states that when sentencing for a domestic violence offence the court has to consider whether the accused has accept the responsibility for the offence . But in your mitigation you still maintain your innocent and submit that this was reported due to jealousy of the complainant. This shows that even at this stage you do not accept your fault and try to shift the blame to your wife.
21. Gross breach of trust on your part by assaulting your pregnant wife who was carrying one of your children in her arm has to be also considered when selecting your final sentence.
22. But I have considered that you are supporting your 5 young children as well as your elderly parents and sole bread winner. Therefore full custodial sentence would be detrimental to your family.
23. Accordingly I sentenced you to 12 months imprisonment for this charge. From that you have to serve 04 months in prison and remaining 08 months will be suspended for 03 years. If you commit any offences during your operational period of the suspend sentence you will be charge under section 28 of the Sentencing and Penalties Decree.
24. For the safety of the victim, I also grant a permanent domestic violence restraining order with standard non molestation conditions.
25. 28 days to appeal.
    

Shageeth Somaratne

Resident Magistrate