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

  Download original PDF

State v Baca [2020] FJMC 52; Criminal Case 292 of 2019 (4 February 2020)

IN THE MAGISTRATES’ COURT OF FIJI
AT TAVUA
CRIMINAL JURISDICTION

Criminal Case No: 292 - 2019
STATE
-v-
JOSEFA BACA

Before : RM Lisiate Fotofili

For Prosecution : WPC Chand A. [ Police Prosecution ]

Accused : In Person, Waived Right To Counsel

Date of Sentence : 4^th February 2020

DECISION

BACKGROUND

1. JOSEFA BACA, you were to be sentenced today pursuant to your admission and guilty plea. For the reasons that will become apparent in the course of this decision, I will have to defer your sentence.
   
2. You have pleaded guilty to the following charge:
   

First Count

Statement of Offence

ASSAULT OCASSIONING ACTUAL BODILY HARM: Contrary to section 275 of the Crimes Act of 2009.

Particulars of Offence

JOSEVA BACA on the 3^rd day of December, 2019 at Tavua in the Western Division assaulted VENIANA ADI LOLOMA thereby causing her actual bodily harm.

Second Count

Statement of Offence

DAMAGING PROPERTY: Contrary to section 369 ( 1 ) of the Crimes Act of 2009.

Particulars of Offence

JOSEVA BACA on the 3^rd day of December, 2019 at Tavua in the Western Division wilfully and unlawfully damaged a mobile phone coloured brown with touch screen branded ‘HUAWEI’ valued at $500 the property of VENIANA ADI LOLOMA.

3. I am satisfied that your guilty plea to the charge or both counts is voluntary and that you understand the consequence of your plea.
   
4. The victim is your 23 year old wife. You were at home with the children when your wife returned. You asked her why she did not take the children with her to Rakiraki where she was earlier in the day. You got angry. You punched and kicked your wife’s head and hands while she was sitting down on the floor in the sitting room. You injured her as a result. You picked up two plastic bottles containing salt and sugar and you threw it at your wife hitting her on the arms as she was trying to save herself. You went inside the bedroom, picked up your wife’s phone and threw it on the floor damaging it.
   
5. Your wife was medically examined about 3 hours later after your violence. The medical officer amongst other things, observed that there was bruising and swelling to her upper and lower lips, the left side of her head was swollen, both her arms were swollen and there were multiple bruises to her arm.
   
6. The matter was reported and you were later arrested and interviewed by police. You admitted that you returned home from farming. Your father and your two children were at home with you. Your wife then came home. She was away from home since the morning of that day. You admitted being rude to her, you punched and kicked her head and hands. You picked up her phone and threw it. You threw a bottle of sugar and salt at her. You were not happy that she had been away from home and had gone to Rakiraki and was not answering your question about her whereabouts.
   

PAST CASES

7. I am aware and I am familiar with your past cases before me. I have taken judicial notice of these cases and the records in those files.
   
8. I have sentenced you in Tavua CF 273 – 18 and CF 348 – 18 after you pleaded guilty in those cases to assault and causing injuries to the victim. The victim in those cases too was your wife. The offences were committed in September and November of 2018.
   
9. In CF 273 – 18 you received a 3 month imprisonment term. 1 month was deducted for the time you spent in remand. The remaining 2 months imprisonment was suspended for the next 2 years and 2 months. A domestic violence restraining order [ DVRO ] with section 27 standard non-molestation conditions was imposed and finalised on you. You were sentenced on the 29^th of October 2018.
   
10. You received an aggregate sentence in CF 348 – 18 which was an aggregate 4 month imprisonment term which was partly suspended. You served 2 months imprisonment and the remaining 2 months imprisonment was suspended for 3 years. A DVRO with section 27 standard non-molestation conditions was finalised on you too. You were sentenced on the 18^th of June 2019.
    

REMAND

11. In this case before me for which you are to be sentenced, you have been in remand since appearing for the first time on the 19^th of December 2019. Considering your past convictions and the domestic nature of the offence, you had to be remanded in custody. It was necessary. I calculate so far that you have spent approximately 1 month and 3 weeks in remand.
    

MITIGATION

12. You are 26 years old. You have children to look after. One is aged 3 and the other is 2 years old. You have sought forgiveness from your wife. You seek forgiveness from the court.
    
13. Your wife was present in court on the 28^th of January 2020 and she verifies that you have apologised to her. You two are still together.
    

HABITUAL OFFENDER

14. Considering your past abuse against your wife, a strong argument could be made that you are a habitual offender. You are fortunate that the prosecution have not filed any charge for breaching your suspended sentence. It appears that your past sentences have not deterred you.
    
15. You could be declared a habitual offender pursuant to section 10 ( b ) and section 11 of the Sentencing and Penalties Act 2009 [ also see for example Etuate Suguturaga v The State Criminal Appeal No. AAU0084 of 2010 [ 5^th of December 2014 ] paragraphs 10 to 15 ].
    
16. A Magistrate cannot declare you to be a habitual offender, that discretionary declaration is reserved only for the High Court and the higher appeal courts [ section 11 ( 1 ) and ( 2 ) of the Sentencing and Penalties Act 2009 ].
    
17. Your sentence, should you be declared a habitual offender, will have to reflect the need to protect the community [ your wife being a member of the community ] and the need for a longer sentence and not a sentence only proportionate to the gravity of the offence.
    

ORDERS

18. Based on the above, I transfer your case for sentencing to the High Court pursuant to section 191 and 193 ( 1 ) and ( 2 ) of the Criminal Procedure Act 2009;
    
19. I reserve any finding of guilt or reserve any formal entering of a conviction against you and that will be determined by the High Court;
    
20. I reserve any determination or declaration of you being a habitual offender, to the High Court;
    
21. I reserve passing any sentence on you in this case.
    
22. I direct the registry to prepare the records for this case and your other files CF 273 – 18 and CF 348 – 18 in anticipation of your case being heard in the High Court.
    
23. You will be remanded in the meantime and we will fix a date before the High Court hereafter.
    

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

Dated at Tavua this 4^th day of February, 2020