State v Ralulu [2013] FJMC 13; Criminal Case 261.2012 (14 January 2013)

IN THE MAGISTRATE COURT OF FIJI
AT TAVUA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. 261/12

BETWEEN:

THE STATE

AND:

SAMISONI RALULU

Prosecution: Cpl Chin Sami
Accused: In Person

SENTENCE

1. Samisoni Ralulu 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 18th November 2012 at 7pm at Tavualevu Village, the complainant (Merewalesi Likusoni, 30yrs) your wife asked you as to why you came home late. You never said a thing and punched her on the mouth and head. She fell on the bed and you punched her twice again. Complainant than went to hospital and matter was reported to police. Complainant's medical report also shows that she sustained injuries as a result of the assault.

You were arrested, interviewed under caution and charged.

5. I've considered your mitigation and take the following in your favour:
   
   • Guilty plea and saved the courts time.
     
   • First offender.
     
   • Sorry and apologized to Court.
     
   • You've also reconciled with the complainant.
     
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. In addition this offence is a domestic violence offence due to your relationship with the complainant. It's no longer reconcilable.
   
9. 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. In domestic violence cases, sentences of 18 months imprisonment have been upheld (Amasai Korovata v. The State [2006] HAA 115/06S.
   
10. In light of the circumstances of offending in this case, I commence my sentence at 9 months imprisonment.
    
11. Considering the aggravating features I increase your sentence by 2 months. Your sentence is now 11 months imprisonment.
    
12. 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.
    
13. I now consider whether your sentence should be suspended. This is your first offence and you've remorseful for action. This is reflected by rendering your apologies to the complainant and also the court. In the Courts opinion it would be appropriate to grant you an opportunity to reform yourself. Hence your sentence will be suspended.
    
14. I therefore order that your sentence 6 months be suspended for 2 years.
    
15. If you commit any offence within the operational period of 2 years, you'll be further charged for breaching this suspension order and if convicted, you'll be made to serve the 6 months imprisonment with any other punishment imposed in the other offence.
    
16. I also order under section 27(2) of the Domestic Violence Decree that you must not:
    
    1. physically assault or sexually assault Merewalesi Likusoni;
       
    2. threaten to physically assault or sexually assault Merewalesi Likusoni;
       
    3. damage or threaten to damage any property of Merewalesi Likusoni;
       
    4. threaten, intimidate or harass Merewalesi Likusoni;
       
    5. behave in an abusive, provocative or offensive manner towards Merewalesi Likusoni;
       
    6. encourage any person to engage in behaviour against Merewalesi Likusoni where the behaviour if engaged in by you would be prohibited by the order.
       
17. This Domestic Violence Restraining Order is permanent forthwith and can only be discharged, suspended or varied by further orders of the Court.
    
18. In addition, I also order that you pay a fine of 2 penalty units ($200.00) in default 20 days in prison. Fine to be paid within 30 days.
    
19. Matter for review in 30 days.
    
20. 28 days to appeal.
    

Samuela Qica
Resident Magistrate

14th January 2013