State v Bainitabua [2013] FJMC 12; Criminal Case 211.2012 (14 January 2013)

IN THE MAGISTRATE COURT OF FIJI
AT TAVUA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. 211/12

BETWEEN:

THE STATE

AND:

KELEPI BAINITABUA

Prosecution: PC Dinesh
Accused: In Person

SENTENCE

1. Kelepi Bainitabua you pleaded guilty to the offence of Assault Occasioning Actual Bodily Harm contrary to section 275 of the Crimes Decree No. 44 of 2009.
   
2. You waived your right to counsel and admitted that you were not forced to plead guilty to the charge and that you pleaded voluntarily. You also accepted the facts tendered by prosecution.
   
3. The Courts finds your guilty plea to be unequivocal and you've convicted as charged.
   
4. The facts are on 3rd October 2012 at 8am, you were part of a gang cutting sugar cane at Davota Tavua. Whilst you and your gang were loading the truck, the truck driver namely Pravin Chand (42yrs) complainant in this case told the gang to stop loading the truck. Instead your gang kept loading the truck and a heated argument developed whereby you punched the complainant twice on the face.
   

Matter was reported to police and you were arrested, interviewed under caution and charged. Complainant was also taken for medical examination and his report shows that he sustained injuries resulting from the assault.

5. I've considered your mitigation and take the following in your favour:
   
   • Guilty plea and saved the courts time.
     
   • Sorry and apologized to Court.
     
6. The aggravating features are:
   
   • Prevalence of offence in community.
     
   • Lack of provocation.
     
7. Under the Crimes Decree no. 44 of 2009, the prescribed penalty for Assault Causing Actual Bodily Harm under section 275 is a maximum imprisonment term of 5 years.
   
8. The tariff for the offence of Assault Occasioning Actual Bodily Harm appears to range from an absolute or conditional discharge to 12 months imprisonment (see: State v Salote Tugalala, HAC025 of 2008). The High Court in Elizabeth Joseph v. The State [2004] HAA 030/04S and State v. Tevita Alafi [2004] HAA073/04S stated that it is the extent of the injury which determines sentence....Where there has been a deliberate assault, causing hospitalization and with no reconciliation, a discharge is not appropriate.
   
9. In light of the circumstances of offending in this case, I commence my sentence at 9 months imprisonment.
   
10. Considering the aggravating features I increase your sentence by 2 months. Your sentence is now 11 months imprisonment.
    
11. For the early guilty plea I reduce your sentence by 3 months. For other mitigating circumstances including your remorse and reconciliation I reduce your sentence by 2 months. Your final sentence is now 6 months imprisonment.
    
12. I now consider whether your sentence should be suspended. I note that this is not your first offence. You have three previous convictions dating back to 2004 including one for a similar offending in which proceedings were stayed by the court. From your past offending's the court had been lenient on you by either staying the proceeding or imposing a fine. It seems you've taken for granted the court's leniency to you in the past. You've not a first offender therefore you've not entitled to the leniency of the court. I think the sentence imposed should be a lesson to you and deterrent to other would be offenders. There are no exceptional or compelling circumstances to suspend your sentence. Your sentence will not be suspended.
    
13. I therefore order that you serve an immediate imprisonment term of 6 months.
    
14. 28 days to appeal.
    

Samuela Qica
Resident Magistrate

14th January 2013