State v Tukana [2013] FJMC 289; Criminal Case 1289.2013 (5 August 2013)

IN THE MAGISTRATE’S COURT AT SUVA
CRIMINAL DIVISION

Criminal Case No. 1289 of 2013

The State

–v-

Tomasi Tukana

For the State: Cpl. Dickson
For the Accused: In person

SENTENCE

Tomasi Tukana you have been convicted as charged of the following offences: -

• First Count – Annoying a Person contrary to section 213 (1) of the Crimes Decree
  
• Second Count – Assault Causing Actual Bodily Harm contrary to section 275 of the Crimes Decree
  

The facts are that on the 16^th of July 2013 at Tamavua-i-wai settlement you were drinking with your wife and an argument developed between the two of you. You verbally abused your wife using the words as set out in the charge.

When she asked you not to swear at her, you then punched her causing the following injuries: -

- tenderness, haematoma on forehead
- tenderness on jaws
- tenderness on occipital joint
- tenderness on the shoulder
- tenderness and haematoma on chest

The matter was reported to the police and after the investigations were completed you were charged for this offence.

The summary of the facts has been outlined to you and you have admitted the same therefore you stand convicted as charged. This is a domestic violence offence as the victim in this case is your wife.

You have 5 previous convictions with your last conviction coming in 2011.

You have tendered the following plea in mitigation: -

- You are 34 years of age, married with one child of 9 months and you reside in Tamavua-i-wai.
- You state that the reason that this incident happened is that you were both under the influence of alcohol and your wife hit you first.
- You ask for the Court’s forgiveness and advise that you have reconciled with your wife.
- You also promise not to repeat this offence.

The State has filed sentencing submissions and submits that the maximum sentence for the first count is one year imprisonment whilst the maximum sentence for the second count is 5 years imprisonment. The tariff ranges from a suspended sentence to 2 years imprisonment.

The following factors are submitted as aggravating factors: -

- The injuries sustained as a result of the attack
- Length and nature of the attack
- Special vulnerability of the victim

The State recommends an appropriate sentence to serve as a deterrent for like minded offenders.

In sentencing you the Court is aware that this is a domestic violence offence therefore the provisions of section 4 (4) of the Sentencing and Penalties Decree are relevant. The section provides as follows: -

“4 (3) In sentencing offenders for an offence involving domestic violence, a court must also have regard to—

(a) any special considerations relating to the physical, psychological or other characteristics of a victim of the offence, including—

(i) the age of the victim;

(ii) whether the victim was pregnant; and

(iii) whether the victim suffered any disability;

(b) whether a child or children were present when the offence was committed, or were otherwise affected by it;

(c) the effect of the violence on the emotional, psychological and physical well being of a victim;

(d) the effect of the offence in terms of hardship, dislocation or other difficulties experienced by a victim;

(e) the conduct of the offender towards the victim since the offence, and any matter which indicates whether the offender—

(i) accepts responsibility for the offence and its consequences;

(ii) has taken steps to make amends to a victim, including action to minimise or address the negative

impacts of the offence on a victim;

(iii) may pose any further threat to a victim;

(f) evidence revealing the offender’s—

(i) attitude to the offence;

(ii) intention to address the offending behaviour; and

(iii) likelihood of continuing to pose a threat to a victim; and

(g) whether the offender has sought and received counselling or other assistance to address the offending behaviour, or is willing to undertake such counselling or seek such assistance.”

In this case you assaulted your wife as a result of an argument. You argue that you were provoked and you reacted to that provocation. You will agree that your reaction was wholly disproportionate and excessive and has resulted in injuries being sustained by your wife. Your plea in mitigation has not revealed any remorse or self awareness on your part as to the seriousness of your actions.

Your submission of reconciliation is not based on any evidence as the victim has not come forward to confirm the same.

I find that the victim is in danger from further domestic violence from you therefore I order that the interim Domestic Violence Restraining Order (Standard Non Molestation Conditions) that was issued earlier by this Court is to be made a final order of the Court.

The only special aggravating factor for these offences are the lack of remorse on your part as the injuries sustained by the victim are subsumed into the second count itself. The two offences were committed as part of one transaction therefore you will receive a concurrent sentence for both offences.

For the first count of Annoying a Person I sentence you to 3 months imprisonment.

For the second count of assault I take a starting point of 6 months and for the lack of remorse I add 3 months. You entered a guilty plea at the earliest opportunity therefore your sentence is reduced by 3 months. This leaves you with a sentence of 6 months imprisonment. You have been in remand for the past 18 days for this offence therefore this will be deducted from your final sentence.

For the second count of Assault Causing Actual Bodily Harm I sentence you to 5 months 13 days imprisonment to be served concurrently with the first count.

Your total sentence is 5 months and 13 days imprisonment and this sentence may be suspended in the appropriate circumstance as provided at section 26 of the Sentencing and Penalties Decree.

In deciding whether to suspend the sentence the Court takes into account the circumstances of this offence and the fact that this is a domestic violence offence.

The Court also notes that there has been no evidence of remorse or whether you have taken steps to address your behaviour as provided for at section 4 (4) of the Sentencing and Penalties Decree.

You have entered a guilty plea and you have pleaded your family and personal circumstances for the Court’s consideration.

In considering the above the Court finds that there is no justification for suspending your sentence – you will serve your sentence as a custodial sentence.

Tomasi Tukana this is your sentence: -

(i) Annoying a Person – I sentence you to 3 months imprisonment;
(ii) Assault Causing Actual Bodily Harm – I sentence you to 5 months 13 days imprisonment to be served concurrently.

The interim DVRO (Standard Non Molestation Conditions) that is in place is hereby made a final order of the Court for the protection of your wife.

28 days to appeal

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Usaia Ratuvili
Chief Magistrate

5^th August 2013