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State v Daunisau - Sentence [2018] FJMC 76; Criminal Case 70 of 2017 (29 August 2018)

IN THE MAGISTRATES’ COURT OF FIJI
AT TAILEVU

Criminal Case No: - 70/2017

HAC No: 209/2017

STATE

V

ELIKI DAUNISAU

For the prosecution: WPC Siteri

For the accused: Mr.Verabalavu(LAC)

Date of Judgment: 27^th of August 2018

Date of Sentence : 29^th of August 2018

SENTENCE

1. ELIKI DAUNISAU , you were convicted after a hearing to one count of Assault Occasioning Actual Bodily Harm contrary to section 275 of the Crimes Act No 44 of 2009(“Crimes Act”) .
2. On 01/07/2017 the victim, your sister was in the farm with her boyfriend. You approached them and asked your sister about the affair and when she confirmed about that you tried to assault her boyfriend. He escaped from the place and you turned on to your sister and dragged her to the road. There you assaulted her forehead with a stone causing injury. The medical report of the victim shows multiple injuries on her face.
3. The maximum penalty for Assault Occasioning Actual Bodily Harm under the Crimes Act is 05 years imprisonment.
4. 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 now from 6 to 18 months imprisonment.
5. In Kumar v State [2018] FJHC 583; HAA05.2018 (10 July 2018) his Lordship Justice Aluthge held that the tariff in a domestic violence case is 9- 12 months’ imprisonment and if the assault is serious the decision in State v Prasad [2015] 493 justifies a sentence up to 18 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 in the following manner :

"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. Considering the above judicial precedents and based on objective seriousness, I select 09 months as the starting point for your sentence.
8. Since this is a domestic violence offence I am mindful about the section 4(3) of the Sentencing and Penalties Act which the sentencing court must consider in sentencing an accused.
9. The aggravating factors are you assaulted your sister with a stone and targeted her face and the forehead which are considered as vulnerable places in the body. For these aggravating factors I add 06 months to your sentence to reach 15 months imprisonment.
10. In mitigation your counsel submitted that you are 59 years old, single, farmer and seeking forgiveness. For these mitigating factors I deduct 06 months to reach 09 months imprisonment.
11. Even though your counsel also submitted about some reconciliation considering that this is a domestic violence offence I do not give much weight to that factor.
12. You have valid previous convictions and not entitle for discounts for your previous good behavior.
13. Now I would consider whether to suspend your sentence pursuant to section 26(2) (b) of the Sentencing and Penalties Act.
14. In State v Kailoma [2018] FJHC 763; HAC46.207 & HAC63.2017 (21 August 2018) his Lordship Justice Goundar said:

“The courts will never condone family violence. Family violence must be denounced. The primary purpose of sentence is deterrence, both special and general”

15. As noted earlier you have some previous convictions. One of these was where you were convicted for similar offence against your other sister and given a partly suspended sentence. It appears that you have a history of unleashing violence against your siblings. You failed to accept that your sister is not your slaves and she has the right to associate with the people she prefers.
16. For these reasons I find a custodial sentence is warranted in this case to denounce the behavior of the accused and deter him from committing in future. Since a partly suspended sentence is not effective for the accused, this time he will be given the full custodial sentence.
17. ELIKI DAUNISAU, accordingly you are sentenced to 09 months imprisonment for this charge.
18. For the safety of the victim I also issue a permanent domestic violence restraining order with standard non molestation conditions.
19. Since this case was remitted from the High Court the appeal will be to the Court of Appeal within 30 days.

Shageeth Somaratne

Resident Magistrate