State v Waqatabu - Sentence [2014] FJHC 721; HAC266.2013 (3 October 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 266 OF 2013

BETWEEN:

STATE

AND:

PENI WAQATABU

Counsel : Mr. Nath S for the State
Mr. Tawake P for the Accused

Sentencing : 03rd October 2014

SENTENCE

1. You, Mr. Peni Waqatabu stands convicted for one count of Assault Occasioning Actual Bodily Harm: contrary to section 275 of the Crimes Decree No. 44 of 2009. Even though there was another charge of 'Rape' contrary to section 207 of the Crimes Decree against you at the beginning, a Nolle Prosequi was filed by the Director of Public Prosecutions in that regard.
   
2. The existing Information states as follows:
   

Second Count

Statement of Offence

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

Particulars of Offence

PENI WAQATABU, on the 6th day of July, 2013, Veiwawa, Navua, in the Central Division assaulted ANASEINI VUIDRAVUWALU, thereby occasioning her actual bodily harm.

3. Once the Director of Public Prosecutions decided to drop the charge of 'Rape', you pleaded guilty to the above charge on your own free will and this court convicted you accordingly. The agreed Summary of Facts reflected that you are the complainant's uncle and financially supported her education. The victim had been living at your place with you and your wife as you two do not have any children. On the date of the alleged offence, you had confronted her and later assaulted as she was late to return home from a wedding.
   
4. The Medical Examination Form of the complainant shows that she sustained moderate tenderness of interior chest wall palpation (especially over the 5th rib), some swelling over the left elbow proximal left arm, but no bruising. The doctor's professional opinion is that the victim had sustained 'blunt force trauma to the areas mentioned'.
   
5. The maximum penalty for Assault Occasioning Actual Bodily Harm as per section 275 of the Crimes Decree is 5 years imprisonment. The tariff ranges from absolute or conditional discharge to 2 years imprisonment. (Elizabeth Joseph v The State, 2004 HAA 073/04; State v. Salote Tugalala, HAC 025 of 2008; State v. Nayacalagilagi, Criminal Case No. HAC 165 of 2007; Sareka v. State (2008) FJAC 88; State v. Mohammed Mustafa Hakim, HAC 022 of 2009). The final sentence depends on the seriousness of the assault, the degree of provocation, use of weapons and other related aggravating and mitigating factors.
   
6. You entered a plea of guilty to this charge as soon as the more serious charge was dropped by the DPP. You admitted that what you did to the complainant was wrong and had already sought forgiveness from her. You promised this court that you will not re-offend. I understand that you had been in remand custody for almost 8 months from 12th July 2013 to 17th March 2014, in relation to this case as you were denied bail. Now you are 51 years old and farms for the living.
   
7. On the other hand, this court is mindful that the complainant was just 16 years old at the time of the incident and you were in a position of authority over her. She had sustained moderate tenderness, though no bruising received.
   
8. Having considered all the above factual and legal background, you are sentenced to 5 months imprisonment and it is been suspended for 3 years. Effects of a suspended term are been explained to you.
   
9. According to the Victim Impact Statement dated 31st July 2014, the victim has a "2 months old daughter on bottle feed and she is schooling". Therefore, I order a permanent DVRO against you making the complainant and her child protected persons with standard non-molestation conditions.
   

Janaka Bandara
Judge

At Suva
Officer of the Director of Prosecution for State
Office of the Legal Aid Commission for the Accused