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State v Kuruisaqila - Sentence [2024] FJMC 32; Criminal Case 253 of 2024 (14 August 2024)

IN THE MAGISTRATES’ COURT
AT BA
CRIMINAL JURISDICTION

Criminal Case No. 253/2024

BETWEEN: STATE

PROSECUTION

AND: APENISA KURUISAQILA

ACCUSED

Counsel: WCPL 3443 Vaciseva Marawa for Police Prosecution
Accused in person.

Date of Sentence: 14 August 2024

SENTENCE

Introduction

1. Mr. Apenisa Kuruisaqila, on 24 July 2024, you pleaded guilty to 1 count of Assault Causing Actual Bodily Harm contrary to section 275 of the Crimes Act 2009 and 1 count of Breach of Order Suspending Sentence contrary to section 28(1) of the Sentencing and Penalties Act 2009. The particulars of the offences are:
   

Count 1

Statement of Offence

Assault Causing Actual Bodily Harm: Contrary to Section 275 of the Crimes Act 2009.

Particulars of Offence

Apenisa Kurusaqila, on the 14^th day of June, 2024 at Field 27 Navatu, Ba in the Western Division assaulted Mereia Rasaku thereby causing her actual bodily harm.

Count 2

Statement of Offence

Breach of Order Suspending Sentence: Contrary to Section 28(1) of the Sentencing and Penalties Act 2009.

Particulars of Offence

Apenisa Kurusaqila, on the 14^th day of June, 2024 at, Ba in the Western Division whilst being on suspended sentence vide BA CF: 62/23 committed another offence of Assault causing Actual Bodily Harm punishable by imprisonment.

2. I am satisfied that you have fully comprehended the legal effect of your plea and that your plea was voluntary and free from influence, I now convict you and proceed to sentence you for both offences.
   

Circumstances of the offending

3. According to the Summary of Facts you admitted in Court, you and the Complainant are married and on 14 June 2024 at about 4am at Field 27 Navatu, Ba, the Complainant left the house to go and buy BBQ with her sister-in-law and brother-in-law and you were drinking liquor at the Complainant’s sister’s house.
   
4. After you finished drinking, you found that the Complainant was not at home. When the Complainant returned she found you swearing at the children. The Complainant then explained to you where she had gone to and also asked for your forgiveness. You then started to punch the Complainant on her head and kicked her on the right side of her face.
   
5. The Complainant tried to run out of the house but you pulled her back and stepped on her head. The matter was reported to Ba Police Station and the Complainant was taken to Ba Aspen and medically examined by Medical Officer Talili Tavuki where it was noted that the Complainant had received injuries on the right side of her face, the Complainant had a swelling on her right hand and injuries on both her thighs.
   
6. Upon further investigation, it was found that you had had a case vide Ba CF 62/23 for the offence of Assault causing Actual Bodily Harm where you were convicted on 11 May 2023 with a sentence of 9 months imprisonment of which you were to serve 3 months imprisonment and the remainder of 6 months imprisonment was suspended for 4 years with section 27 orders of the Domestic Violence Act being made permanent. Thus, on 14 June 2024 you had breached the order of suspended sentence by committing the offence of Assault causing Actual Bodily Harm.
   

Sentencing Purpose

7. Considering the prevalent nature of this crime within the domestic environment especially targeting female members, I find the objective seriousness of this crime is high. Considering that the primary purpose of this sentence is founded on the principle of deterrence. It is the responsibility of the Court to deter others from committing such offences of the same or similar nature as well as to protect the community from those who commit such offences.
   
8. A deterrent sentence for such offences of this nature demonstrates the gravity of the offence and reflects the society’s immediate denouncement of such crimes.
   

Sentencing Regime

9. The maximum penalty for the offence of Assault causing Actual Bodily Harm is 5 years imprisonment.
   
10. In the case of Matai v State [2018] FJHC 25; Criminal Appeal 108.2017Ltk (26 January 2018) His Lordship Justice Madigan imposed a new domestic violence tariff. He stated:
    

“.... it must now be said that the tariff for a domestic violence assault causing actual bodily harm is a wide range of 6 to 18 months, wide enough to cater for all kinds of injuries. It would be only in exceptional circumstances that a suspended sentence would be passed for the offence, given that sending the convict back into the family home could well have perilous consequences. For a second offence on the same victim, a suspended sentence is inconceivable.

11. Thus, the tariff applicable in this matter given that there is domestic violence is 6 to 18 months and in only exceptional cases would a suspended sentence be given.
    
12. The maximum penalty for the offence of Breach of Order Suspending Sentence is a fine not exceeding $10,000 and in addition the court must restore the sentence or part sentence held in suspense and order the offender to serve it which is pursuant to section 28(4) of the Sentencing and Penalties Act 2009.
    
13. There is no set sentencing preference or tariff for the offence of Breach of Order Suspending Sentence.
    

Level of Culpability

14. Further, it is evident that there was no provocation on the part of the Complainant when you committed this offence against her. The assault you committed on the Complainant was impulsive/spontaneous and at the time you were intoxicated. Moreover, when the Complainant tried to run out of the house, you pulled her back and proceeded to step on her head. Thus, I find the level of culpability is quite high.
    

Mitigating and Aggravating Factors

15. The Court notes that mitigation offered by you, however, personal circumstances and family background holds very low mitigatory value in this offending (vide Raj v State Appeal No. CAV 0003 of 2014 (20 August 2014).
    
16. Further, you had also informed the Court that you and the Complainant had reconciled, however, there is no concrete evidence of this as such, the Court will not be able to consider that has been genuine reconciliation.
    
17. Further, the Court was informed that you had a total of 8 Previous Convictions with your last PC being for Assault causing Actual Bodily Harm in CF 62/23 where you were sentenced on 11 May 2023 to 9 months imprisonment of which 3 months to be served and the remainder of 6 months imprisonment to be suspended for 4 years.
    
18. It is evident from your previous convictions that you have not reformed yourself. Moreover, you have not provided the Court with any evidence of any significant contributions made by you to your community. As such, considering section 5 of the Sentencing and Penalties Act 2009, the Court is unable to provide you any discount for your previous character.
    
19. In considering the aggravating factors in this matter, the Court finds that:
    
    1. you breached the trust of the Complainant who is your wife; and
    2. prior to committing the assault on the Complainant you had sworn at your children and then assaulted the Complainant in their presence which would have affected them.
       

Sentence

20. Considering the objective seriousness, the purpose of this sentence with the level of culpability, in this case it is appropriate to have a starting point towards the higher end of the tariff. I accordingly select 14 months as the starting point.
    
21. I will then add 6 months for the aggravating factors mentioned at paragraph 20 herein, making it a total of 20 months imprisonment. For your mitigation, I will consider your early guilty plea which highlights your genuine remorsefulness for your actions, I accordingly deduct 10 months, leaving you with a balance of 10 months imprisonment.
    
22. Section 26(1) of the Sentencing and Penalties Act allows a court to make an order suspending the whole or part of the sentence if it is satisfied that it is appropriate to do so in the circumstances whilst section 26(2)(b) provides the Magistrates Court with the discretion to suspend a sentence where the sentence does not exceed 2 years.
    
23. However, the Court does not find that this is a case where a suspended sentence or even a partly suspended sentence is warranted as at the time of the offending, you had 8 previous convictions with 3 previous convictions being related to Assault cases with the last previous conviction for Assault being 11 May 2023. It is evident that from your last sentence on 11 May 2023, the 3 months that you were made to serve in prison with the remainder sentence being suspended has done nothing to allow you to rehabilitate yourself. Further, from the Summary of Facts admitted to, there was no provocation on the part of the Complainant when you assaulted her (vide State v Chand [2002] FJCA 50; AAU0027U.2000S (1 March 2002) citing R v Petersen [1994] 2 NZLR 533).
    
24. As such, you are to serve your 10 months sentence with immediate effect.
    
25. Now turning to the offence of Breach of Order Suspending Sentence, you had not provided any information to the Court regarding your earning capacity and financial situation other than that you had financial commitments, as such the Court will not order a fine. After considering the facts and the circumstances of the case herein, the Court finds no exceptional circumstances which would justify not to restore a sentence in suspense which is pursuant to section 28(4)(a)-(c) of the Sentencing and Penalties Act. Rather pursuant to section 28(5) of the Sentencing and Penalties Act, the Court finds that the Accused is to immediately serve his sentence - the sentence of 6 months imprisonment vide Ba Criminal Case No. 62/23 which will be consecutive to the sentence of 10 months imprisonment for the offence of Assault causing Actual Bodily Harm herein.
    
26. Section 18(3) of the Sentencing and Penalties Act provides the Court with the discretion to fix a non-parole period if the imprisonment term is less than 2 years but more than 1 year. Thus, considering the serious of the crime, the purpose of this sentence and opportunities for rehabilitation, your non-parole period will be for a period of 8 months, effective forthwith.
    
27. Finally, the Court is mindful, that you have been in in custody from 28 June 2024 until the date of this Sentence.
    
28. Considering section 24 of the Sentencing and Penalties Act, the total of 47 days or 1 month 17 days is considered as time already served by you.
    
29. Thus, your actual sentence to be served is now 14 months 13 days imprisonment with your non-parole period being 6 months and 13 days.
    
30. Further, the court notes that in Ba Criminal Case No. CF 62/23, a permanent domestic violence restraining order (DVRO) was issued against you with standard non-molestation conditions. As such, the Court will not issue a DVRO in this matter.
    
31. Any party aggrieved with this Sentence has 28 days to appeal to the High Court.
    

N. Mishra
Resident Magistrate