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State v Salacakau [2016] FJMC 82; Criminal Case 54.2016 (12 July 2016)

IN THE MAGISTRATES’ COURT OF FIJI
AT TAVEUNI

Criminal Case No: - 54/2016

STATE

V

PETERO SALACAKAU

For the Prosecution: Sgt.Naidu

For the Accused: Mr.A.Paka(LAC)

Date of Sentence : 12^th of July 2016

SENTENCE

1. PETERO SALACAKAU, you pleaded guilty yesterday to one count of Assault Occasioning Actual Bodily Harm contrary to section 275 of the Crimes Decree No 44 of 2009.
2. According to admitted summary of facts, on 24/06/2016 after an argument about a previous incident you assaulted the complainant causing him injuries. He is related to you making this domestic violence offence.
3. The learned defence counsel in his oral mitigation is asking for a non-conviction because you are playing in Rugby in provincial team Australia and conviction would make it difficult for you to travel.
4. 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 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 ordinary person. Accordingly I convict you for this offence.
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. 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.
9. Considering the gravity of offending, I select 06 months as the starting point for your sentence.
10. In this case I find the relationship between the parties as aggravating factor and add 03 months to reach 09 months imprisonment.
11. In UK Sentencing Guidelines, the positive good character and provocation are considered as mitigating factors.
12. In mitigation it was shown that you are 26 years old with no previous conviction. Also parties have reconciled and this was confirmed by the complainant in the Court. In domestic violence cases involving this offence, a genuine reconciliation can be considered as a mitigating factor and here also I accept this as genuine. For all this mitigating factors I deduct 03 months to reach 06 months imprisonment.
13. 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”.

14. 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.
15. You pleaded guilty on the first available opportunity and for that following the above guidelines; I deduct 1/3 to reach 04 months imprisonment.
16. Now I have to consider whether to suspend this sentence. Considering your past good behavior, early guilty plea and genuine reconciliation I find this is a proper case to suspend the sentence.
17. Therefore I sentenced you to 04 months imprisonment and this will be suspended for 01 year.
18. If you commit any offence during next 01 year you can be charged under section 28 of the Sentencing and Penalties Decree.
19. For the safety of the complainant I also grant a permanent domestic violence restraining order with standard non-molestation conditions.
20. 28 days to appeal.
    

Shageeth Somaratne

Resident Magistrate