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State v Nalulu [2018] FJMC 10; Criminal Case 19 of 2018 (16 February 2018)

IN THE MAGISTRATES’ COURT OF FIJI
AT TAILEVU

Criminal Case No: - 19/2018

STATE

V

APOROSA NALULU

For the prosecution: Sgt.Rao

The accused: In person

Date of Sentence : 16^th of February 2018

SENTENCE

1. APOROSA NALULU , you were charged with one count of Assault Occasioning Actual Bodily Harm contrary to section 275 of the Crimes Act No 44 of 2009(“Crimes Act”).
2. You pleaded guilty and also admitted the summary of facts presented by the prosecution.
3. According to the summary of facts on 07/02/2018 your wife was at home when there was an argument about a mobile phone of a relative. Unsatisfied with her answer you got up and punched your wife on the face, choked her causing injuries as per the medical report.
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 under the Crimes Act is 05 years imprisonment.
6. In Khan v State [2017] FJHC 746; HAA68.2017 (6 October 2017) his Lordship Justice Aruna Aluthge said:

“It was held in State v Tugalala [2008] FJHC 78; HAC025S.2008S (29 April 2008), that the tariff for this offence should range from an absolute or conditional discharge to 12 months’ imprisonment. As noted in earlier cases, Elizabeth Joseph v. The State [2004] HAA 030/04S and State v Tevita Alafi [2004] HAA073/04S, it is the extent of the injury which determines sentence. The use of a pen knife for instance, justifies a higher starting point. Where there has been a deliberate assault, causing hospitalization and with no reconciliation, a discharge is not appropriate. In domestic violence cases, sentences of 18 months’ imprisonment have been upheld in Amasai Korovata v. The State [2006] HAA 115/06S.”

7. In Matai v State [2018] FJHC 25; Criminal Appeal 108.2017Ltk (26 January 2018) his Lordship Justice Madigan said that the tariff for a domestic violence assault causing actual bodily harm is from 6 to 18 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. Considering the above judicial precedents and based on objective seriousness, I select 12 months as the starting point for your sentence. This is the middle end of the tariff as enunciated in Matai v State (supra).
10. There are no aggravating factors and in mitigation you submitted the following :
    1. 37 years old;
    2. Married with 2 children;
    100. Employed as a farmer;
    4. Sole bread winner of the family;
    5. Reconciled.
11. In Patel v State [2011] FJHC 669; HAA030.2011 (27 October 2011), Justice Madigan held:

“[8] This is a domestic violence offence and as such it cannot be reconciled. (Part III Section 3 (b) of Domestic Violence Decree). The appellant’s ground that the Magistrate did not allow for credit for reconciliation cannot be made out. The victim in this case cannot reconcile with the appellant in order to mitigate this offence. Nor should the Magistrate have allowed it to be a factor in his mitigation “list”. Reconciliation plays no part in a domestic violence offence either for or against an accused.”

12. In State v Kumar [2011] FJHC 341; HAA 020.2010 (9 June 2011), Justice Madigan held:
    

“A domestic violence offence which this obviously is cannot be reconciled and in any event the Court record notes that the victim did not want to reconcile. It is incumbent upon the tribunal or officer of the Court to have regard to the Domestic Violence Decree which came into force on the 1st of December 2009.The Decree was enacted to protect persons, men women and children, from abuse in domestic environment and if the Courts do not make findings and ruling within the spirit of the Decree, then that altruistic arm is thwarted.”

13. The above judicial precedents are clear enough to show that reconciliation in domestic violence offences should be approached with caution. In this case both parties agreed about this reconciliation. But it has to be noted that the accused is the sole bread winner of the family and the victim is mother of 2 small children attending school. Hence in my view it is highly doubtful this reconciliation is genuine to take in to consideration in this case. Accordingly I disregard this ground. But for other mitigating factors I deduct 03 months to reach 09 months imprisonment.
14. You are not a first offender and hence not entitle for discounts for your character.
15. Finally for your early guilty plea I deduct 1/3 to reach 06 months imprisonment.
16. Now I have to consider whether to suspend this sentence pursuant to section 26(2) (b) of the Sentencing and Penalties Act.
17. As mentioned earlier you are not a first offender and admitted by you in the mitigation they were committed against your wife also. You were given a chance to rehabilitate previously by courts but continue to commit violence against your wife. Hence to protect your wife and to deter you from committing similar offences in future I find a custodial sentence is merited in this case.
18. Accordingly I sentenced you to 06 months imprisonment for this charge. I also grant a permanent domestic violence restraining order with standard non-molestation conditions in favor of the victim to protect her from further violence.
19. 28 days to appeal.

Shageeth Somaratne

Resident Magistrate