State v Kotobalavu [2013] FJMC 162; Criminal Case 31.2013 (24 April 2013)

IN THE MAGISTRATE'S COURT OF FIJI
AT TAVEUNI

Criminal Case No: - 31 /2013

STATE

V

JOSEFA KOTOBALAVU

For Prosecution : - Constable Lui
Accused : - In person

SENTENCE

1. JOSEFA KOTOBALAVU, you were charged in this Court for the offence of Assault Occasioning Actual Bodily Harm contrary to section 275 of the Crimes Decree No.44 of 2009.
   
2. You waived right to counsel and pleaded guilty for this offence on 22 April 2013. You also admitted the summary of facts.
   
3. According to summary of facts you had an argument with your wife and assaulted her on 16 Feb Lovonivonu, Taveuni causing her injuries.
   
4. The Court is satisfied about your plea and convicts you for this offence.
   

The Law and the Tariff

5. The maximum penalty for the offence of Assault Occasioning Actual Bodily Harm offence is 05 years imprisonment.
   
6. In Sereka v State [2008] FJHC 88; HAM 027 it was held that the tariff for assault occasioning actual harm ranges from a suspended sentence where there is a degree of provocation and no weapon used, to 9 months imprisonment for the more serious cases of assault.
   
7. Considering the facts in this case I take 06 months as the starting point of your sentence.
   

Aggravating Factors

8. The victim is your wife making this a domestic violence offence. This will be considered as an aggravating factor and I add 03 months to reach 09 months.
   

Mitigating Factors

9. You pleaded guilty at the first available opportunity and therefore are entitled for 1/3 reduction of your sentence. Now your sentence would be 06 months imprisonment.
   
10. You are a first offender and married with 02 children. You have reconciled with your wife. Also you seek forgiveness from this Court. For these mitigating factors another 02 months will be deducted from your sentence to reach 04 months imprisonment.
    
11. This Court is mindful that under section 26 (2) (b) of the Sentencing and Penalties Decree it can suspend a sentence which is below 02 years.
    
12. You are a first offender. You saved Court's resources by pleading guilty at the first chance you got. This Court has considered these factors and believes you need to be given a chance to reform.
    
13. Therefore I sentence you to 04 months imprisonment for the Offence of Assault Occasioning Actual Bodily Harm and suspend that sentence for 02 years.
    
14. You have to be in good behavior during the next 02 year. If you commit any crime during that period you can be charged under section 28 of the Sentencing and Penalties Decree.
    
15. Also this Court grants a permanent domestic violence restraining order with standard non molestation conditions in favor of the victim.
    
16. 28 days to appeal
    

23 April 2013

H.S.P.Somaratne
Resident Magistrate,