State v Vonolagi [2013] FJMC 75; Criminal Case 1550.2012 (13 February 2013)

IN THE RESIDENT MAGISTRATE'S COURT OF FIJI
AT SUVA

Criminal Case No; 1550/2012

STATE

V

SERUWAIA VONOLAGI

• Sgt. Jitendra, Police Prosecutor for the Prosecution.
• Ms. Lavenia Raisua for the Accused.
  

SENTENCE

1. The complainant victim of this case has been your partner. He was 47 year old lecturer at the Fiji National University. On 07.11.2012 you returned home at around 4 am and you were heavily smelt of liquor. Soon after there had been an argument between you and the victim. You threw an empty sauce bottle him and started to punch the victim. Later the matter was reported to the police and the victim was sent to the hospital for medical examination.
   
2. The medical report reflects the impact of your assault. The victim had sustained 4 centimetres long laceration on the top of the left eyebrow with multiple minor cuts and lacerations on the face. The Medical officer has observed blood stains from his clothes. Further the victim had stated that the bottle was smashed on his face.
   
3. It is apparent that the Medical opinion is consistent with the incident.
   
4. You were arrested and interviewed under caution. The allegation was admitted during the caution interview.
   
5. This incident led the police investigators to charge you on the following count.
   
   1. Assault Causing Actual Bodily Harm – Contrary to section 275 of the Crimes Decree No 44 of 2009.
      
6. You initially appeared without any legal representation and indicated willingness to seek Legal Aid assistance. The Court granted a date to facilitate your request. On 12.02.2013 you decided to enter a 'plea of guilt' on your own accord and free will. The Court is satisfied on the voluntariness of your plea.
   
7. Section 154 of the Criminal Procedure Decree will not have any application to this case for reconciliation due to the domestic setting of the facts. This Court further proceeded to issue an interim domestic violence restraining order against you for the well being of the victim until the conclusion of this case.
   
8. Foregoing Summary of Facts was read over, explained and having understood the same, you admitted it. This Court convicts you for the offence.
   
9. The Penal Code offence of 'Assault Occasioning Actual Bodily Harm' under Sections 245 attracted a maximum sentence of 05 years imprisonment. The present offence even though brought under Section 275 of the Crimes Decree 2009 is similar.
   
10. The Tariff for 'Assault Occasioning Actual Bodily Harm' under Section 245 of the Penal Code (now repealed), varies from a suspended sentence to 09 months imprisonment. (per Goundar J in Jonethani Sereka v State [2008]HAA 027/08S, 25 APR 2008)
    
11. In view of the foregoing facts and the sentencing guidelines stipulated in section 4 (3) of the Sentencing and Penalties Decree 2009, I select 07 months imprisonment as the starting point for your sentence.
    

AGGRAVATING FACTORS

12. The victim is the partner of you and he was 47 years old. It was stated that the victim was sleeping before the incident and there is no evidence before the court to conclude that there were any provocation by the victim. Therefore the court considers this as an aggravating factor of the offence.
    
13. Although he was not admitted to the hospital multiple bleeding injuries on the face will further aggravate the offence.
    
14. In the circumstances, I increase the sentence by another 03 months.
    
15. Period of imprisonment now stands at 10 months.
    

MITIGATING FACTORS

16. Your early guilty plea takes 3 months of your sentence off.
    
17. In your mitigation submission, you stated that you are a 37 year old, mother of four children. You are currently residing with the victim partner and therefore it appears that you have sought forgiveness from the complainant victim. I reduce another one month to reflect your said personal circumstances.
    
18. Further you stated that you had been a national Netball player for two decades until 2011 and represented Fiji in many international events such as Pacific Games, Commonwealth Games, and World Championships. You have also extended your services as an assistance coach of the Fiji National Netball team.
    
19. The legal system does not wish to intervene in to the relationships of the persons. There can be disagreements and differences between parties. And also there should be some room for the parties to resolve their own problems. But it must be free from any physical or physiological violence. Any incident which occurs in a household with the use of physical violence cannot be considered as a trivial offence.
    
20. It is the paramount duty of domestic legal framework to ensure a violence free household.
    
21. Your final term of imprisonment is now stands at 6 months.
    
22. In terms of Section 26(2)(b) of the Sentencing and Penalties Decree 2009 a sentence below two years could be suspended by this Court.
    
23. Section 4(1) (c) and (e) of the Sentencing and Penalties Decree 2009 state that the Court should deter offender and the other persons of the community from committing the same or similar offences. And also it is important to denounce such crimes.
    
24. You are a first offender. These circumstances warrant a non custodial sentence. On the other hand the Court has to consider an intervention to the increasing number of domestic violence cases. A domestic relationship of parties does not give any kind of authorization to either party to use violence to solve their problems. The offenders of such should bear in mind that the Court will act strictly even on the first offenders.
    
25. However having considered your previous good behaviour the court decides to suspend your sentence.
    
26. Seruwaia Vonolagi today you are sentenced to 6 months imprisonment and it is suspended for 24 months.
    
27. Further the interim domestic violence restraining order that was issued by this court will have permanent effect on you with non molestation condition as per section 24(1)(b)(1) of the Domestic Violence Decree 2009 to ensure wellbeing of the victim.
28. Twenty eight (28) days to appeal.
    

Pronounced in open Court

Yohan Liyanage
Resident Magistrate

13th February 2013