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State v Matavucu - Sentence [2018] FJMC 72; Criminal Case 568 of 2018 (7 August 2018)

IN THE MAGISTRATES’ COURT OF FIJI
AT NAUSORI

Criminal Case No: - 568 /2018

STATE

V

SUNIA MATAVUCU

For the prosecution: Cpl Gandhi

The accused: In person

Date of Hearing: 06^th of August 2018

Date of Sentence : 07^th of August 2018

SENTENCE

1. SUNIA MATAVUCU , 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 21^st July 2018 around 7.15pm at Nausori Health Center, you punched the victim and caused him injuries as per the medical report. The victim was at the health center waiting to see a doctor for his sickness when you came drunk and sat beside him. When the victim told you about the smell, you got offended and threw 3 punches at victim causing injuries on his face. You are a serving police officer in Fiji police force and were off duty at time and came to see your wife who was working as a nurse in that health center.
4. I am satisfied that your plea was voluntary 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. His Lordship Justice Vincent Perera in Anaiasa Naqialawa v. State [2017] FJHC 484; HAA 15 of 2017 (29 June 2017); stated thus:

“It is pertinent to note that 12 months is only a one fifth of a 5 year imprisonment which is the maximum sentence for the offence of assault causing actual bodily harm under section 275 of the Crimes Act. All in all, I am of the view that it is appropriate to have 12 months imprisonment as the higher end of the tariff for the said offence.

Needless to say, the selecting of a starting point is not that difficult where the relevant sentencing tariff indicates the lower end of the imprisonment term applicable to a particular offence as opposed to other sentencing options that may be considered.

If the sentencer decides that an imprisonment term is the appropriate punishment for an offender who is convicted of the offence of assault causing actual bodily harm under section 275 of the Crimes Act and not to opt for an absolute or conditional discharge, it is important for the sentencer to have a clear opinion on the minimum imprisonment term the offence should attract considering its objective seriousness. In my view, an imprisonment term of 3 months would appropriately reflect the objective seriousness of the offence of assault causing actual bodily harm under section 275 of the Crimes Act.”

8. In State v McPherson - Sentence [2017] FJHC 890; HAC42.2016 (22 November 2017) the court held that the tariff would be from 3 months to 12 months imprisonment.
9. 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."

10. Considering the above judicial precedents and based on objective seriousness, I select 04 months as the starting point for your sentence.
11. You are serving police officer in the Fiji police force. Even though you were not on duty at that time, being a police officer you are supposed to be on duty throughout the day. You were drunk at that time and assaulted the victim who came to the health center to take the treatment. The victim was 17 years old and a juvenile. I consider these as aggravating factors and add 06 months to your interim sentence to reach 10 months imprisonment.
12. In mitigation you submitted that you are 34 years old, married with 4 children and seeking forgiveness. Even though you are a first offender, I do not give much weight to that considering your job requires a good character. For these mitigating factors I deduct 03 months to reach 07 months imprisonment.
13. You pleaded guilty on the first day without wasting the court time and resources and for that I deduct 02 months to reach 05 months imprisonment.
14. Now I have to consider whether to suspend this sentence pursuant to section 26(2) (b) of the Sentencing and Penalties Act.
15. As mentioned earlier in this sentence you are a serving police officer and supposed to protect the public in this country. Instead of that you assaulted a person who came to take treatment in the health center because he asked you to move away as he could not stand your alcoholic smell. It is not an excuse to say that you were off duty at that time because as a police officer you are supposed to be on duty 24 hours of the day. As much as the police officers are to be protected in the country, the public are also supposed to protect from law enforcement officers who would unleash violence on them. Hence I find a custodial sentence is warranted in this case to denounce your behavior and deter these kind of incidents happening in future.
16. But I am also mindful that there need to be chance for you to rehabilitate considering your early guilty plea and other personal mitigating factors.
17. Hence I find partly suspended sentence would serve these objectives.
18. Accordingly I sentenced you to 05 months imprisonment for this charge and from that you have to serve 03 months in the correction center and the remaining 02 months will be suspended for 01 year.
19. Suspended sentence is explained to the accused.
20. 28 days to appeal.

Shageeth Somaratne

Resident Magistrate