State v Nailava [2013] FJMC 51; Criminal Case 35.2013 (30 January 2013)

IN THE RESIDENT MAGISTRATE’S COURT AT NAVUA

Criminal Case No: - 35/2013

STATE

V

SAILASA NAILAVA

For Prosecution : - SC Freddy

Accused : - In person

SENTENCE

1. SAILASA NAILAVA, you were charged for the offence of Assault Occasioning Actual Bodily Harm contrary to section 275 of the Crimes Decree.
2. You waived right to legal counsel and pleaded guilty for the charge. You also admitted the summary of facts presented by the prosecution.
   
3. According to the summary of facts on 16/12/2012 you assaulted your wife causing her injuries.
   
4. This Court is satisfied about your plea and convicts you for the 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. Also you assaulted her without any provocation. These will be aggravating your offence and I add 03 months for them to reach 09 months imprisonment.
   

Mitigating Factors

9. You pleaded guilty on the first day 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 a 03 months old baby. 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. You are married with a child to look after. 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
    

30/01/2013

H.S.P.Somaratne
Resident Magistrate, Navua