State v Ganivatu [2012] FJMC 190; Criminal Case 881.2012 (14 August 2012)

IN THE RESIDENT MAGISTRATE'S COURT OF FIJI ISLANDS
AT SUVA

Criminal Case No; 881/2012

STATE

V

SAKEO GANIVATU

Prosecution: Cpl Reddy, Police Prosecutor.

Accused : In person.

SENTENCE

1. You, Sakeo Ganivatu are here today to be sentenced following the admission of 'guilt' on your own accord and free will in this Court on 31.07.2012, for committing the offence of 'Assault Occasioning Actual Bodily Harm' under Sections 275 of the Crimes Decree 2009.
   
2. The offence cannot be reconciled under section 154 of the Criminal Procedure Decree 2009 due to the domestic setting of circumstances.
   
3. The facts you have agreed in Court states that this incident occurred on 23.07.2011 at around 5.30 am. Victim had asked you to bring dinner on 22nd of July before you left to work. But you failed. When she called you on your mobile, you asked her to come near Liquids Night Club. Again you did not go there to meet her. Finally when you went home at around 5.30 am she questioned you. At this time you started assaulting her.
   
4. Medical report of the victim confirms that she sustained minor injuries on her face due to the assault.
   
5. The matter was reported to the police. Later you were arrested and interviewed under caution. You admitted the charges put to you by the police.
   
6. The Court finds that you are guilty for the offence.
   
7. According to the Penal Code, Chapter 17, the offence of 'Assault Occasioning Actual Bodily Harm' under Sections 245 attracts a maximum sentence is 05 years imprisonment. The present offence even though brought under Section 275 of the Crimes Decree 2009 is similar.
   
8. The Tariff for 'Assault Occasioning Actual Bodily Harm' under Section 245 of the Penal Code (now repealed), varies from a suspended sentence to 09 months imprisonment. (per Goundar J in Jonethani Sereka v State [2008]HAA 027/08S, 25 APR 2008)
   
9. You addressed Court in mitigation and stated that you are a first offender, reconciled with the victim, and staying with her under one roof now. Also you mentioned on your recent promotion at work as an education officer.
   
10. It is clear that a conviction by this Court will undoubtedly affect your employment.
    
11. You brought the plight of your family in to Court's attention. You are the breadwinner of your wife who is 31 years and the only child. Even the victim confirmed that she has pardoned you and now living together. If you lose your employment as a result of this sentence, the dependent victim will undoubtedly undergo another period of difficulties.
    
12. The general principle of sentencing is that the Court will not impose a more serious sentence unless it is satisfied that a lesser or an alternative sentence will not meet the objectives of sentencing. A sentence of imprisonment is regarded as the sanction of last resort.
    
13. In view of the foregoing, I note that an adjournment of proceedings under section 45(2) of the Sentencing and Penalties Decree for a period of time would be in the best interest of the family.
    
14. Accordingly the proceeding of this case is adjourned for a period of 24 months. During this period you should not harass, abuse or intimidate the victim in any manner. Both you and the victim are directed to contact the counsellor of the family division of this court to arrange counselling sessions. A copy of this order will be dispatched and communicated to the family division.
    
15. The case will be called within three months time to evaluate the progress.
    
16. Further the interim domestic violence restraining order which was issued by this Court on 31.07.2012 will have permanent effect on you with non molestation conditions as per section 24(1)(b)(1) of the Domestic Violence Decree 2009 to ensure wellbeing of the victim.
    
17. Failure to obey these orders is a criminal offence for which you may be prosecuted.
    
18. Twenty eight (28) days to appeal.
    

Pronounced in open Court,

Yohan Liyanage
Resident Magistrate

14th August 2012