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State v Bavai [2017] FJMC 48; Criminal Case 255.2017 (10 April 2017)

IN THE MAGISTRATES’ COURT OF FIJI
AT SUVA

Criminal Case No: - 255/2017

STATE

V

NOA BAVAI

For the prosecution: Cpl Shaw

For the Accused: Mr.Korotini (LAC)

Date of Sentence : 10^th of April 2017

SENTENCE

1. NOA BAVAI , 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 the summary of facts presented by the prosecution.
3. According to the facts the victim is your son and was 09 years old at the time of offending. On 17/05/2016 he was standing outside the house watching other children playing marble outside, when you asked him to come inside the house. When he came you asked him to get a broom and with that started to beat him causing injuries. The medical report shows multiple injuries in the face and back of the victim.
4. I am satisfied about your plea is voluntarily and unequivocal and convict you for this charge.
5. The maximum penalty for Assault Occasioning Actual Bodily Harm is 05 years imprisonment.
6. 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.”

7. Considering the gravity of offending, I select 05 months as the starting point for your sentence.
8. By assaulting in this manner you breached the trust of your child who would have look after you for the protection and care. Further the victim was 09 years old at the time of offending. This is also a domestic violence. For these aggravating factors I add 10 months to reach 15 months imprisonment.
9. In mitigation your counsel submitted that you are 36 years old, married with 2 children and a first offender. You have reconciled with the parties. But in domestic violence offence the reconciliation can be considered as a valid mitigating factor only if the court is satisfied that it is genuine reconciliation. In this case the victim is only a 09 year child and I do not think he would be even aware about the meaning of reconciliation. Hence I would not give any weight for that. But for other mitigating factors I deduct 05 months to reach 10 months imprisonment.
10. You pleaded guilty at the earliest opportunity and also saved the victim from giving evidence. For that giving full credit, I deduct 1/3 to reach 06 months imprisonment.
11. Now I have to consider whether to suspend this sentence pursuant to section 26(2) (b) of the Sentencing and Penalties Decree.
12. Article 19 of the United Nations Convention on the Rights of the Child (“CRC”) provides for the State parties to take all appropriate measures to protect the children from violence whilst in care of parents or guardians. The Government of Fiji has ratified CRC in 1993 and included this in the basic law in this country which is 2013 Constitution. Article 41 of the Constitution specifically states that the every child has the right to be protected from any form of violence, inhuman treatment and punishment.
13. In view of the international obligations under CRC and bill of rights under the Constitution the courts have a duty to protect the children in this country from violence in whatever form. In this case without any justification you have assaulted your son with a broom in inhuman manner causing multiple injuries. Your behavior on that day need to be denounced and strong message need to be given to the society that violence against the children in homes would not be tolerated. Hence I find a custodial sentence is warranted in this case to fulfill these objectives.
14. Accordingly I sentenced you to 06 months imprisonment for this charge.
15. For the safety of the victim, I also grant a permanent domestic violence restraining order with standard non-molestation conditions.
16. 28 days to appeal.

Shageeth Somaratne

Resident Magistrate