State v Koro [2013] FJMC 374; Criminal Case 158.2013 (16 October 2013)

IN THE MAGISTRATE COURT OF FIJI
AT RAKIRAKI
CRIMINAL JURISDICTION
CRIMINAL CASE NO. 158/13

BETWEEN:

THE STATE

AND:

KAMELI KORO

Prosecution: Cpl Chin Samy
Accused: Ms Tarai (Legal Aid Office)

SENTENCE

1. Kameli Koro 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 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 Court after being satisfied that your guilty plea was unequivocal convicted you as charged.
   
4. The facts are on 31/3/13 at 8.30am at Naisogovau Settlement Nalawa Ra you had an argument with your wife the complainant (Ilisapeci Rota, 31yrs) for not allowing your wife to attend a village fundraising. During the process of the heated argument you got angry and slapped the complainant on her face.
   

The matter was reported to police. You were arrested, cautioned interviewed and then charged accordingly.

The complainant was also taken to the hospital for medical examination. The medical report shows injuries consistent with the allegation.

5. Ms Tarai mitigated and I take the following in your favour:
   
   • You've a first offender;
   • Pleaded guilty at first available opportunity;
   • You've reconciled with the complainant and remorseful;
   • You promised not to re-offend and requested for leniency.
     
6. I consider the aggravating features in this case as:
   
   • No provocation by the complainant;
   • Breach of trust.
     
7. It should be noted that due to your relationship with the complainant the subject offence is regarded as a domestic violence offence.
   
8. 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.
   
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. For the aggravating factors I increase the sentence by 2 months. Your sentence stands at 11 months.
    
12. This being your first offence and other mitigation I reduce the sentence by 2 months. For your guilty plea I further deduct the sentence by 3 months. Your final sentence is 6 months imprisonment.
    
13. To give effect to the principle of deterrence you are sentenced to 6 months imprisonment.
    
14. I now consider whether your sentence should be suspended. Although the nature of the offending was unprovoked, you have a good background hence it would be appropriate to suspend your sentence.
    
15. I order that your sentence of 6 months imprisonment be suspended for 2 years. If you commit any offence within the operational period of 2 years, you'll be charged for breaching this suspension order and if convicted you'll be made to serve this 6 months imprisonment term or part of it with any other punishment imposed in that other offence.
    
16. In addition to the above, I also make an order under section 27(2) of the Domestic Violence Decree that you must not:
    
    1. physically assault or sexually assault Ilisapeci Rota;
    2. threaten to physically assault or sexually assault Ilisapeci Rota;
    3. damage or threaten to damage any property of Ilisapeci Rota;
    4. threaten, intimidate or harass Ilisapeci Rota;
    5. behave in an abusive, provocative or offensive manner towards Ilisapeci Rota;
    6. encourage any person to engage in behaviour against Ilisapeci Rota where the behaviour if engaged in by you would be prohibited by the order.
       
17. This Domestic Violence Restraining Order can only be varied, suspended or discharged by further orders of the Court.
    
18. 28 days to appeal.
    

Samuela Qica
Resident Magistrate

16th October 2013