IN   THE MAGISTRATES’   COURT OF FIJI
AT   SUVA 
Criminal Case No: - 142/2017  
       STATE
V
		        RATU EPELI SAMUEL MOODY CAKOBAU      
         For the Prosecution: Cpl Shaw      
         The accused: In person 
         Date of Sentence   : 07th of February 2017   
SENTENCE
1.	RATU EPELI SAMUEL MOODY CAKOBAU, 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 for this charge and admitted on 03/02/2017 you assaulted your brother. At that time he was drunk and your mother asked you to take him out of the house. 
3.	In your mitigation you asked this court not to enter a conviction in view of your plan to migrate abroad with your wife. A conviction would affect your employment and chance to migrate. 
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 the article 26 of the 2013 Constitution clearly 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 in this country. 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.	In Laisiasa  Koroivuki  v  the  State [2013] FJCA 15; AAU0018.2010 (5 March 2013) 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 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."

9.	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. 
10.	Considering the gravity of offending and your culpability, I   select 06 months as the starting point for your sentence. 
11.	In UK Guidelines following are considered as aggravating factors in domestic violence cases : 
a.	Abuse of trust and abuse of power ;
b.	Victim is particularly vulnerable ;
c.	Impact on children;	 
d.	Using contact arrangements with a child to instigate an offence ;
e.	A proven history of violence or threats by the offender in    a domestic setting; 
f.	 history of disobedience to court orders;	 
g.	Victim forced to leave home	 .
12.	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. 
13.	In this case I find the relationship of the parties and the victim was a cardiac patient at that time as aggravating this offence and enhances your sentence by 03 months to reach 09 months imprisonment. 
14.	In UK Guidelines the positive good character and provocation are considered as mitigating factors. 
15.	I consider your past good behavior and personal mitigating factors (married with 2 children, remorseful) as mitigating this offence and deduct 03 months to reach 06 months imprisonment. 
16.	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”. 
17.	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. 
18.	You pleaded guilty at the first day and for that I deduct 1/3 to reach 04 months imprisonment. 
19.	Now I have to consider whether to suspend this sentence pursuant to section 26(2) (b) of the Sentencing and Penalties Decree. 
20.	Considering your young age, past good behavior and early guilty plea in my view the main purpose of this sentence is to allow you the chance to rehabilitate. 
21.	Hence I suspend this 04 months imprisonment to 01 year.  
22.	If you commit any offence during next 01 year you can be charged under section 28 of the Sentencing and Penalties Decree. 
23.	For the safety of the complainant I also grant a permanent domestic violence restraining order with standard non-molestation conditions. 
24.	28 days to appeal. 
    
Shageeth Somaratne
Resident Magistrate