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State v Baca - Sentence [2018] FJMC 132; Criminal Case 273 of 2018 (29 October 2018)

IN THE MAGISTRATES COURT OF FIJI AT TAVUA
CRIMINAL JURISDICTION

Criminal Case No: 273 - 2018
STATE
-v-
JOSEFA BACA

For Prosecution: WPC Chand [ Police Prosecution ]
Accused: In person, waived the right to counsel

Date of Sentence: 29^th day of October 2018

SENTENCE

BACKGROUND

1. JOSEFA BACA, you are here to be sentenced upon pleading guilty to the following charge:
   

Statement of Offence

ASSAULT OCASSIONING ACTUAL BODILY HARM: Contrary to section 275 of the Crimes Act No: 44 of 2009.

Particulars of Offence

JOSEFA BACA on the 24^th day of September, 2018 at Tavualevu Village, Tavua in the Western Division assaulted VENINA ADI LOLOMA thereby causing her actual bodily harm.

2. I am satisfied that your guilty plea to the charge is voluntary and that you understand the consequence of your plea.
   
3. After having admitted the facts proposed by the prosecution and having heard you, I have found you guilty accordingly.
   
4. The victim here is your 22 year old wife. You called your wife to the room asking her about some photos posted on facebook relating to her drinking beer with friends. You both argued and during that argument you jumped on the bed and threw punches on her face, mouth and forehead.
   
5. The matter was reported the day after whereby you were arrested and interviewed.
   
6. In your interview with police, you admitted being with your wife at the material time and you told her about leaving both your 2 year old son and 10 month year old daughter at home and going out to drink beer. You said that you punched her 6 times and punched her on the face. You were angry. You admitted causing her injuries. You said that she was still drunk at the time you two were talking and that she was shouting at you and did not show you respect.
   
7. When your wife was medically examined a day later after you beat her, the medical officer noted that there was bruising to your wife’s right eye, there was swelling to her left forehead and there was a mild swelling to both her cheeks.
   
8. Your wife was also present in court on the day you pleaded guilty. She has forgiven you and wants the case terminated. She tells me that she does not work and the family relies on you.
   
9. You have been in police custody for a few hours and you have been remanded from the 28^th of September the day you pleaded guilty, to await your sentence. Overall you would have been in remand for approximately 1 month.
   
10. There is no indication that you have any previous conviction and so I will treat you as a person having a good history.
    
11. In your mitigation, you submit that you will not reoffend. You have 2 infants to look after and you support them by going fishing.
    

LAW

12. The maximum sentence that is imposable by law for the offence of assault occasioning actual bodily harm is up to 5 years imprisonment.
    

TARIFF

13. The sentencing tariff for assault occasioning actual bodily harm ranges between a suspended sentence to 9 months imprisonment depending on the degree of provocation and whether any weapon was used [ see for example Randipni Singh v The State HAA 13 of 2016 ( 17^th June 2016 ).
    

STARTING POINT

14. Considering the circumstance of your case, a 4 month imprisonment term is selected as a starting point.
    

AGGRAVATING FEATURE

15. I am not sure whether your children particularly your 2 year old son was present to witness what you did so I will not increase your sentence for this.
    
16. However, this was your wife or a domestic relationship was present.
    
17. You punched her several times on the face.
    
18. Your sentence is increased to 7 months imprisonment because of these.
    

MITIGATION

19. I don’t place any weight on any reconciliation. The victim is dependent on you emotionally and the family depends on you financially.
    
20. I accept that you cooperated with the police.
    
21. I accept that you regret what you did.
    
22. I accept that some words must have been exchanged between you and your wife and you were upset about her leaving the children. This still does not give you a license to have done what you did.
    
23. Some consideration must also be taken for your past good character as well.
    
24. You look after the family.
    
25. Altogether, your sentence is reduced to 4 months imprisonment.
    

GUILTY PLEA

26. You sentence is reduced further to 3 months imprisonment for your early guilty plea.
    

SUSPENSION

27. I can suspend your 3 months imprisonment term either in whole or in part pursuant to section 26 (1 ) and ( 2 ) ( b ) of the Sentencing and Penalties Act 2009.
    
28. I also take into account the factors outlined in section 4 of the Sentencing and Penalties Act 2009 when deciding whether or not to suspend your sentence.
    
29. Your sentence will be aimed at deterrence and to punish you.
    

FINAL SENTENCE

30. You are sentenced to 3 months imprisonment.
    
31. I will consider the 1 month you have spent in remand as time already served and so you have 2 months imprisonment remaining.
    
32. I am inclined to suspend this remaining term in whole and it will be suspended for the next 2 years.
    
33. Commit any other offence in the next 2 years and this 2 months imprisonment held in waiting may be activated.
    

[suspended term explained to the defendant]

34. In addition, I will order that the interim Domestic Violence Restraining Order [DVRO] with standard non-molestation conditions which was imposed on you earlier on the 26^th day of September 2018 in this case will be made final. This is to protect your wife.
    
35. Breach any condition of this DVRO and you may be charged with a separate offence of breaching a DVRO.
    

[ explained to the defendant ]

36. 28 days to appeal.
    

.....................................
Lisiate T.V. Fotofili
Resident Magistrate

Dated at Tavua this 29^th day of October, 2018.