State v Tuinamo [2013] FJMC 380; Criminal Case 199.2013 (21 October 2013)

IN THE MAGISTRATE COURT OF FIJI
AT TAVUA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. 199/13

BETWEEN:

THE STATE

AND:

NARASIA TUINAMO

Prosecution: Sgt Nadolo
Accused: In Person

SENTENCE

1. Narasia Tuinamo 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 8th October 2013 at 7pm there was no water at your place therefore you went to have your bath at Nadarivatu Nursing Station. After having your bath you informed one of your grandsons to go and get your clothes from your wife the complainant (Mere Rai Vatege, 53yrs). The complainant was attending to a prayer session and therefore didn't carry out your request. When you came home there was an argument whereby you got angry and kicked 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. You 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 the Orders made under section 27(2) of the Domestic Violence Decree on 14th October 2013 is now made permanent.
    
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

21st October 2013