State v Gonevou [2013] FJMC 81; Criminal Case 03.2013 (15 February 2013)

IN THE RESIDENT MAGISTRATE'S COURT AT NAVUA

Criminal Case No: - 03/2013

STATE

V

TEVITA GONEVOU

For Prosecution : - Sgt. Lenaitasi

Accused : - In person

SENTENCE

1. TEVITA GONEVOU, this is your sentence for the offence of Assault Occasioning Actual Bodily Harm contrary to section 275 of the Crimes Decree.
   
2. You waived right to counsel and pleaded guilty for the above offence on 24/01/2013. You also admitted the summary of facts.
   
3. According to the facts your de facto wife came to your house on 25/11/2012 to pick her children. You refused giving them to her. When she tried to take them away you assaulted her in her face causing 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 State v Tugalala [2008] FJHC 78; her Ladyship Justice Shameem held that tariff for this offence is from absolute or conditional discharge to 12 months imprisonment.
   
7. Considering the facts in this case I take 06 months as the starting point for your sentence.
   

Aggravating Factors

8. The victim is your de facto wife. Therefore this comes under the definition of domestic violence. For this I add 03 months to reach 09 months.
   

Mitigating Factors

9. You are 45 years old married with 03 children. You asked for forgiveness from this Court. For these mitigating factors I deduct 03 months from your sentence to reach 06 months imprisonment.
   
10. For pleading guilty in the first available opportunity I follow the decision in Vilimone v State [2008] and deduct 1/3 from your sentence to reach 04 months imprisonment.
    
11. You are not a first offender and therefore not entitled for discounts for your past good behavior.
    
12. Section 26 (2) (b) of the Sentencing and Penalties Decree has given powers to this Court to suspend a sentence which does not exceed two years.
    
13. You were shown your previous convictions by the prosecution and you admitted them. From that I note that your last three convictions were for the same kind of offences. This shows that you continue to behave in this manner and not wanting to learn from the mistakes.
    
14. Also in C.F. 125/2012 for the same kind of offence you were given a suspended sentence for 02 years by this Court on 04/06/2012. This offence was committed on 25/11/2012 which falls within the operational period of that sentence.
    
15. Having given you a chance this Court notes that you have not tried to reform. Therefore I do not see any reason to fully suspend your sentence in this case.
    
16. But considering your family and children and hardship they will face this Court is prepared to give you a partly suspended sentence.
    
17. Accordingly you will be sentenced to 04 months for this offence. From this you will serve 01 month in correction center and remaining 03 months will be suspended for 03 years.
    
18. If you commit any crimes during 03 years you can be charged under section 28 of the Sentencing and Penalties decree.
    
19. Also this Court grants a permanent domestic violence restraining order with standard non molestation conditions in favor of the victim.
    
20. 28 days to appeal.
    

15/02/2013

H.S.P.Somaratne
Resident Magistrate, Navua