State v Loco - Sentence [2024] FJHC 345; HAC50.2024 (5 June 2024)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 50 of 2024

STATE

v

TONY LOCO

Counsel: Ms. S. Bibi for the State
Ms. R. Nabainivalu for the Accused



Date of Sentence Hearing: 9^th May 2024
Date of Sentence: 5^th June 2024

SENTENCE

1. Tony Loco is indicted with a single count of the offence of Assault causing actual bodily harm contrary to section 275 of the Crimes Act 2009 as laid out in the Amended Information dated 30 April 2024 by the Director of Public Prosecutions:
   

COUNT ONE

Statement of Offence

ASSAULT CAUSING ACTUAL BODILY HARM: contrary to section 275 of the Crimes Act 2009.

Particulars of Offence

TONY LOCO on the 20^th day of January, 2024, at Raiwaqa in Suva, in the Central Division, assaulted AKANISI NAVUNI thereby causing her actual bodily harm.

2. Tony Loco (Accused), 22 years, and complainant Akanisi Navuni, 23 years, are in a de facto relationship and reside at Jittu Estate, Raiwaqa, Suva. On 20 January 2024 at about 12 noon, they were on their way to Logani village, Tailevu, to attend a thanksgiving dinner and upon boarding the bus the Accused then told the complainant that he had forgotten something and for them to return to their home. When they reached Jittu Estate, the complainant told the Accused that she has an appointment with her cousin to do her hair, but the Accused insisted that she wait for him at his friend Sikeli’s house. The complainant waited at Sikeli’s house with Sikeli’s wife Loddy while the Accused and Sikeli went to fetch a driver to take them to Logani village. When the Accused returned he was furious and shouted at the complainant asking her as to her whereabout, and the complainant’s aunt Lusi who resides next door to Sikeli’s house responded saying that her niece the complainant remained at Sikeli’s house and did not go elsewhere. The Accused and complainant then departed Sikeli’s house and proceeded to their house and once reaching their house the Accused began aggressively accusing the complainant of having an extramarital affair with a man named Sairusi. During the argument the Accused punched the right side of the complainant’s head, behind her ear and left shoulder. The complainant was medically examined later that day at the CWM Hospital and Dr. John Kuilamu noted in his medical report in D(12) & D(14) the following injuries as being consistent with the complainant’s history:
   1. Right posture triangle of neck 4x4 superficial swelling;
   2. Left shoulder 4x4 abrasion noted with swelling;
   100. Right side 3^rd and 4^th knuckles have swelling noted (hand)

The Accused was interviewed under caution by the police and admitted assaulting the complainant (Q&A 60).

3. On 9 May 2024 the Accused via his Legal Aid counsel Ms. Nabainivalu pleaded guilty voluntarily and unequivocally to the aforesaid charge in the Amended Information dated 30 April 2024.
   
4. Prosecutor Ms. Bibi then read out the Summary of facts and submitted the Antecedent Report noting no prior conviction for the Accused. The Accused via his lawyer Ms. Nabainivalu then admitted the Summary of facts followed by this Court formally convicting the Accused of the said charge.
   
5. Ms. Nabainivalu then submitted the Accused’s plea in mitigation and sentencing submission followed by Prosecutor Ms. Bibi’s sentencing submission. The Court then adjourned the matter for sentencing.
   
6. This is the Court’s finding on sentence.
   

Assault causing actual bodily harm

7. The maximum sentence for the offence of Assault causing actual bodily harm under section 275 of the Crimes Act 2009 is 5 years imprisonment.
   
8. In terms of the sentencing tariff for the offence of Assault causing actual bodily harm, in State v Naqelo [2023] FJHC 697; HAC173.2020 (26 September 2023) Justice Rajasinghe held at paragraph 4 that ‘[t]here are a few approaches in setting the tariff for the Assault Causing Actual Bodily Harm. In State v Tugalala [2008] FJHC 78; HAC025/2008S, the High Court found the tariff for Assault Causing Actual Bodily Harm ranges from an absolute or conditional discharge to 12 months imprisonment. In State v Qalobula – Sentence [2020] FJHC 255; HAC100.2018 (3^rd of April 2020), Hamza J found the tariff is 3 months to 12 months imprisonment. Aluthge J in State v Kumar – Sentence [2019] FJHC 544; HAC46.2019 (22^nd of May 2019) found that the tariff for the offence of Assault Causing Actual Bodily Harm when committed in a domestic setting, ranging from 6 months to 18 months.
   

Furthermore, in Matai v The State [2018] FJHC; Criminal Appeal 108.2017Ltk (26 January 2018) Justice Madigan (as he then was) held at paragraph 13:

13. In light of Shameem J.’s finding in Amasi Korovata Cr.App.HAA 115 of 2006, 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.

9. Based on these High Court decisions, I hold that the applicable sentencing tariff in this instant is that of 6 to 18 months imprisonment with the starting point of 6 months.
   
10. With the starting point of 6 months I add 5 months for the aggravating circumstances due mainly to the Accused assaulting his de facto partner the complainant causing her injuries as per the medical report dated 20 January 2024 by Dr. John Kuilamu including the psychological and emotional trauma endured by the complainant.
    
11. For the mitigating circumstances I deduct 2 months acknowledging that the Accused is 24 years of age (D.O.B – 3 June 2000) with no prior conviction, self-employed and in a de facto relationship with the complainant.
    
12. The Accused entered an early guilty plea warranting a deduction of 3 months, and further deduction of 3 months 16 days for time spent in custody, arriving at the head sentence of 2 months 14 days.

Suspension of head sentence

13. Given the head sentence of 2 months 14 days imprisonment, I have decided to suspend this custodial term for a period of 12 months bearing in mind Tony Loco’s young age, previous good character, degree of harm, and in a de facto relationship with the complainant.
    
14. If the Accused later commits and gets convicted of another offence punishable by imprisonment within the operational period of 12 months, the court shall activate the said head sentence of 2 months and 14 days imprisonment. This is in accordance with section 28 of the Sentencing and Penalties Act 2009.
    

Domestic violence restraining order

15. Having been found guilty of a domestic violence offence, I hereby also grant a permanent domestic violence restraining order (DVRO) against the Accused with the standard non-molestation conditions, in accordance with sections 24 and 27 of the Domestic Violence Act 2009, to the effect that Tony Loco is permanently restrained from physically assaulting and abusing the complainant Akanisi Navuni in any manner. Breach of this order can result in the Accused being charged and prosecuted under section 77 of the same statute.
    
16. Thirty (30) days to appeal to the Fiji Court of Appeal.
    

Orders of the Court:

1. Tony Loco is sentenced to 2 months 14 days imprisonment which custodial term is suspended for 12 months.
   
2. Tony Loco is also subjected to a permanent domestic violence restraining order (DVRO) with the standard non-molestation conditions pursuant to sections 24 and 27 of the Domestic Violence Act 2009 not to physically assault and abuse the complainant Akanisi Navuni in any manner.
   

..........................................................
Hon. Justice P. K. Bulamainaivalu
Puisne Judge

At Suva
5^th June, 2024

Solicitors
Office of the Director of Public Prosecutions for the State.
Legal Aid Commission for the Accused