Home | Databases | WorldLII | Search | Feedback Magistrates Court of Fiji

State v Laucala [2017] FJMC 74; Criminal Case 37 of 2017 (12 June 2017)

IN THE MAGISTRATES’ COURT OF FIJI
AT NAUSORI

Criminal Case No: - 37/2017

STATE

V

LEMIKI LAUCALA

For the Prosecution: Sgt.Vilisoni

The accused: In person

Date of Sentence : 12^th of June 2017

SENTENCE

1. LEMIKI LAUCALA, you pleaded guilty this afternoon to one count of Assault Occasioning Actual Bodily Harm contrary to section 275 of the Crimes Act No 44 of 2009.
2. You also admitted on 10/06/2017 at Bureta Village, Levuka you assaulted your 07 year old son with a cassava stem causing him injuries. The multiple injuries are confirmed from the medical report of the victim.
3. I am satisfied that your plea was unequivocal and convict you for this charge.
4. The maximum penalty for Assault Occasioning Actual Bodily Harm under the Crimes Act is 05 years imprisonment.
5. 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.”

6. 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."

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. Considering the nature of offending and your culpability, I select 06 months as the starting point for your sentence.
9. 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 .
10. 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.
11. In this case I find the breach of trust and age of victim as aggravating this offence and enhance your sentence by 06 months to reach 12 months imprisonment.
12. In UK Guidelines the positive good character and provocation are considered as mitigating factors.
13. In mitigation you submitted the following :
    1. 35 years old;
    2. Married with 3 children;
    100. First offender;
    4. School teacher with 12 years’ experience.
14. For the above mitigating factors, I deduct 03 months to reach 09 months imprisonment.
15. 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.
16. You pleaded guilty at the earliest opportunity and for that I deduct 1/3 to reach 06 months imprisonment.
17. Now I have to consider whether to suspend this sentence pursuant to section 26(2) (b) of the Sentencing and Penalties Act.
18. 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.
19. In view of the international obligations under CRC and bill of rights under the Constitution this court has a duty to protect the children in this country from violence in whatever form.
20. In this case without any justification you have assaulted your 07 year old son with a cassava stem in inhuman manner causing him 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.
21. But I am also mindful full custodial sentence would be detrimental to your children who are small. Further with this conviction it is highly likely you would also lose your job.
22. Accordingly I find partly suspended sentence would be justifiable in this case.
23. LEMIKI LAUCALA, you are sentenced to 06 months imprisonment. From that you have to serve 03 months in correction center and balance 03 months suspended for 02 years.
24. If you commit any offence during the operational period of your suspended sentence you can be charged under section 28 of the Sentencing and Penalties Act.
25. For the safety of the victim, I also grant a permanent domestic violence restraining order with standard non-molestation conditions.
26. 28 days to appeal.
    

Shageeth Somaratne

Resident Magistrate