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State v Tiribo [2017] FJMC 5; Criminal Case 91.2017 (27 January 2017)

IN THE MAGISTRATES’ COURT OF FIJI
AT SUVA

Criminal Case No: - 91/2017

STATE

V

MATIA TIRIBO

For the Prosecution : Cpl Shaw

The Accused : In person

Date of Sentence : 27^th of January 2017

SENTENCE

1. MATIA TIRIBO, 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 on 26/01/2017 and admitted the summary of facts presented by the prosecution.
3. According to the summary of facts on 23/01/2017 after an argument you assaulted your wife by punching her face and pressing her stomach. At that time she was 03 months pregnant.
4. I am satisfied that your plea was made voluntarily and unequivocal. Accordingly I 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. 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. In Laisiasa Koroivuki v the State ( Criminal Appeal AAU 0018 of 2010) 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 time. 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. Considering the gravity of offending and your culpability, I select 05 months as the starting point for this case.
10. In UK Sentencing 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.
11. 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.
12. Section 4(3) of the Sentencing and Penalties Decree has to be considered also by a sentencing court in a domestic violence offence.
13. In this case I consider the following as aggravating factors :
    1. Abuse of trust and abuse of power;
    2. This is a domestic violence offence;
    100. Victim was 03 months pregnant at the time of offending.
14. For these aggravating factors, I add 10 months to reach 15 months imprisonment.
15. In UK Sentencing Guidelines the positive good character and provocation are considered as mitigating factors.
16. In this case I consider your past good behavior and personal mitigating factors (married with a child and sole bread winner) as valid grounds and deduct 05 months to reach 10 months imprisonment.
17. You pleaded guilty at the earliest opportunity and for that I deduct 1/3 to reach 06 months imprisonment.
18. Now I have to consider whether to suspend your sentence.
19. This Court has said previously that domestic violence offences are not acceptable in a civilized society. Further assaulting a pregnant women need to be condemned in the strongest manner.
20. On the other hand I am also mindful a full custodial sentence would bring hardship to your pregnant wife and the child who depend on you.
21. Hence balancing the public interest as well as interest of the accused and his family in this case calls for partly suspended sentence.
22. MARIA TIRIBO, I sentenced you to 06 months imprisonment for this charge and from that you are order to serve 03 months in correction center. Balance 03 months will be suspended for 03 years after you finished your sentence.
23. If you commit any offences during next 03 years you can be charged under section 28 of the Sentencing and Penalties Decree.
24. For the safety victim, I also grant a permanent domestic violence restraining order with standard non-molestation conditions.
25. 28 days to appeal.

Shageeth Somaratne

Resident Magistrate