State v Ali [2014] FJMC 131; CR 16.2013 (27 August 2014)

IN THE RESIDENT MAGISTRATE’S COURT
AT NASINU
CRIMINAL JURISDICTION
IN THE CENTRAL DIVISION

CRIMINAL CASE NO.: 16 OF 2013

THE STATE

v

HENRY ALI

For the State; (Ms.) Pauline Madanavosa, State Counsel.
For Accused; Mr. Tevita V. Q. Bukarau

SENTENCE

“Henry”, you appear for sentence in this court, after pleading guilty to the charge of “Assault Occasioning Actual Bodily Harm” contrary to section 275 of the “Crimes Decree” No. 44 of 2009.

Particulars of Offence

“Henry”, on the 1st day of January, 2013 at “Nasinu” in the Central Division unlawfully assaulted “Seini Tinai” thereby occasioned actual bodily harm”

“Henry”, I am satisfied that your plea is “unequivocal” and that you understand the consequences of your plea.

The “Summary of Facts” submitted to court by the State is “reproduced” below:

“On the 31st day of December, 2012 at about 10.00pm the Accused namely Henry Ali was drinking grog with her girlfriend the Complainant namely Seini Tinai at her home. At around after 1.00am on the 1st day of January 2013 the Complainant’s brother arrived with one bottle of rum and they continued drinking. After a while the Complainant ran away with her two nieces to her another brother’s house since the Complainant saw that the Accused could not stand and the Complainant the others talking. The Complainant did not that the Accused was looking for her. All of a sudden the Accused went down to where the Complainant was and started swearing at her saying “bitch” and other abusive language. She apologized to the Accused but the Complainant did not know that the Accused had a knife with him. He forcefully entered the house, dragged her outside and took the kitchen knife and started to stab her back and also her middle finger. The Accused then also punched her lips and her forehead. The matter was reported to Nasinu Police Station on the same day, 1st January 2013. The Complainant was medically examined on the same day that according to the specific medical findings of the doctor she suffered the said injuries:

1. Right base of neck laceration 6.5cm x 2.5cm
   
2. Left back bruising
   

100. Left third digit laceration
     

The Accused was arrested on the 1st day of January 2013 and was interviewed under caution on the 3rd day of January 2013, he made no admissions to the offence”.

The summary of facts was read over to you by the state in open court. You admitted the summary of facts.

Aggravating Factors

(1) Abuse of trust and power.
(2) Use of a weapon (kitchen knife) to injure the victim.
(3) Commission of the offence while under the influence of alcohol.
(4) Offence was committed in the presence of the relatives.
(5) Deliberate and gratuitous violence.
(6) Provocation was minimal.
(7) In prosecution of the offence, you forcefully entered the house of the victim’s brother and dragged her out.
(8) The offence was pursued despite the apology by the victim.
(9) After the incessant attack with the kitchen knife, you furthered the attack with many punches which is reflective of brutality at its highest.
(10) Before the incessant attack with the kitchen knife, the victim was showered with abusive language in the presence of her relatives.
(11) The first injury – the laceration at the right base of neck is a vulnerable area in the body.

Mitigating Factors

(1) You have no prior history of violence or of similar nature.
(2) You acknowledged your wrong-doings by your plea of guilty.
(3) You deeply regretted your actions.
(4) You reconciled with the victim.
(5) You saved courts time and resources by guilty plea.
(6) You saved the victim from the trauma of giving evidence.

Personal Circumstances

• You are a former soldier.
• You are engaged in a de-facto relationship with the victim.
• You are aged 50.
• You currently work as a Security Officer.
  

According to section 275 of “Crimes Decree No.44 of 2009, the offence of “Assault Causing Actual Bodily Harm” carries a maximum sentence of five (05) years imprisonment.

The tariff for “Assault Occasioning Actual Bodily Harm” varies from suspended sentence to 9 months imprisonment. (Per Gounder J, in “Jonetani Sereka vs State 2008 HAA 027/08S, 25 April 2008).

In “State vs Anjula Devi” Criminal Case No. 4 of 1998 Lab, it was held that the tariff for “Assault Occasioning Actual Bodily 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.

In “Elizabeth Joseph vs State” Criminal Appeal HAA 030 of 2004S, the accused stabbed her partner’s wife with a pen knife. The victim received a cut on the finger. A sentence of 4 months imprisonment was upheld in Appeal.

In the case of “State vs Tevita Alafi” 2004 HAA 073/04S, it was held that it is the extent of the injury which determines the sentence.

In the case of “Amasai Korovata vs The State” [2006] HAA 115/06S in domestic violence case, sentence of 18 months imprisonment have been upheld.

In the recent case of “Raisoqoni” HAA 004. 2011S, Goundar J, upheld a six (06) month term imposed by a Magistrate for the same offence in a domestic violence context.

At this stage, I bear in mind the general principle of sentencing under section 15 (3) of the “Sentencing and Penalties Decree No. 42 of 2009, which states;

“As a general principle of sentencing, a court may not impose a more serious sentence unless it is satisfied that a lesser or alternative sentence will not meet the objectives of sentencing stated in section 04, and sentences of imprisonment should be regarded as the sanction of last resort taking into account all matters stated in the General Sentencing Provisions of the Decree”.

Further, I bear in mind the sociological concept so as to balance competing interests of the offender, the victim and the society at large.

Section 4[1] of the Sentencing and Penalties Decree limits the purpose of sentencing an offender to the following grounds:

(a) To punish offenders to an extent and in a manner which is just in all the Circumstances;

(b) To protect the community from offenders;

(c) To deter offenders or other persons from committing offences of the same or similar natures;

(d) To establish conditions so that rehabilitation of offenders may be promoted or facilitated;

(e) To signify that the court and the community denounce the commission of such offences; or

(f) Any combination of these purposes.

Section 4[2] of the decree outlines what a sentencing Court must consider when sentencing an offender:

(a) The maximum penalty prescribed for the offence;

(b) Current sentencing practice and the terms of any applicable guideline judgment;

(c) The nature and gravity of the particular offence;

(d) The offender’s culpability and degree of responsibility for the offence;

(e) The impact of the offence on any victim of the offence and the injury, loss or damage resulting from the offence;

(f) Whether the offender pleaded guilty to the offence, and if so, the stage in the proceeding at which the offender did so or indicated an intention to do so;

(g) The conduct of the offender during the trial as an indication of remorse or the lack of remorse;

(h) Any action taken by the offender to make restitution for the injury, loss or damage arising from the offence, including his or her willingness to comply with any order for restitution that a court may consider under this Decree;

(i) The offender’s previous character;

(j) The presence of any aggravating or mitigating factor concerning the offender or other circumstances relevant to the commission of the offence; and

(k) Any matter stated in this Decree as being grounds for applying a particular sentencing option.

“Henry”, the victim in this case is your “de-facto” partner. Therefore, this is a domestic violence offence.

Section 4(3) provides;

In sentencing offenders for an offence involving domestic violence, a court must also have regard to –

(a) any special considerations relating to the physical, psychological or other characteristics of a victim of the offence, including –

• (i) the age of the victim;
  
• (ii) whether the victim was pregnant; and
  
• (iii) whether the victim suffered any disability;
  

(b) whether a child or children were present when the offence was committed, or were otherwise affected by it;

(c) the effect of the violence on the emotional, psychological and physical well being of a victim;

(d) the effect of the offence in terms of hardship, dislocation or other difficulties experienced by a victim;

(e) the conduct of the offender towards the victim since the offence, and any matter which indicates whether the offender –

• (i) accepts responsibility for the offence and its consequences;
  
• (ii) has taken steps to make amends to a victim, including action to minimize or address the negative impacts of the offence on a victim;
  
• (iii) may pose any further threat to a victim;
  

(f) evidence revealing the offender’s –

• (i) attitude to the offence;
• (ii) intention to address the offending behavior; and
• (iii) likelihood of continuing to pose a threat to a victim; and
  

(g) Whether the offender has sought and received counseling or other assistance to address the offending behavior, or is willing to undertake such counseling or seek such assistance.

At this stage, I address my mind to the legal principles enunciated in the case of “Divendra Bija vs State” 43 FLR 144. In this case it was held “each case must be assessed and evaluated in its true merits and that the best guidance as always is for the courts to grasp the essence of established general principles of sentencing and apply them based on the fundamental premise that a sentence should not be harsh and excessive or wrong in principle”.

“Henry”, you pleaded guilty to the charge and thereby saved courts time and resources.

It has been well recognized practice in common law to take into account a plea of guilty in the sentence. Most common Law Jurisdictions have codified this practice in sentencing statutes. In Fiji, the practice is a part of the common law.

In Navuniani Koroi v. The State Criminal Appeal No. AAU0037 of 2002S, the Court said:

“It has been the practice of the courts to reduce a sentence where the accused person has pleaded guilty. In most cases that is recognition of his contrition as expressed by an early admission and the fact that it will save the witnesses and the court a great deal of time and expense. In offences of a sexual nature, the amount of reduction is generally more because the plea saves the victim from having to attend the trial and relieve her experience in the witness box”.

The weight to be given to a guilty plea depends on a number of factors. Some of these factors were identified by Hunt CJ at CL in R V. Winchester (1992) 58 A Crim R 345 at 350:

"A plea of guilty is always a matter which must be taken into account when imposing sentence. The degree of leniency to be afforded will depend upon many different factors. The plea may in some cases be an indication of contrition, or of some other quality or attribute, which is regarded as relevant for sentencing purposes independently of the mere fact that the prisoner has pleaded guilty. The extent to which leniency will be afforded upon this ground will depend to a large degree upon whether or not the plea resulted from the recognition of the inevitable: Shannon (1979) 21 SASR 442 at 452; Ellis (1986) 6 NSWLR 603 at 604. The plea of guilty may also be taken into account as a factor in its own right independently of such contrition, as mitigation for the co-operation in saving the time and cost involved in a trial. Obviously enough, the extent to which leniency will be afforded upon this ground will depend to a large degree upon just when the plea of guilty was entered or indicated (and thus the savings effected): Beavan (unreported, Court of Criminal Appeal, NSW, Hunt, Badgery-Parker and Abadee JJ, 22 August 1991), at p.12.

In the “Principles of sentencing” second edition, by D.A.Thomas, at P.46 wrote

“The Final step in the process of calculating the length of tariff sentence is to make allowance for mitigation, reducing the sentence from the level indication by the facts of the offence by an amount appropriate to reflect such mitigating factors as may be present. Mitigating factors exist in great variety, but some are more common and more effective than others. They include such matters as the youth and previous of the offender....”

After giving due consideration to the factual and legal background, I select twelve (12) months imprisonment as my “starting point”. This high starting point reflects the serious domestic violence attack. I add eight (08) months for the aggravating factors. I reduce four (04) months for the following mitigating factors:

(1) You acknowledged your wrong-doings by your plea of guilty.
(2) You deeply regretted your actions.
(3) You saved the victim from the trauma of giving evidence.

Now your sentence stands at sixteen (16) months imprisonment. You are a first offender. Hence, I reduce four (04) months for your previous good behavior, since you are entitled for a discount for your previous good behavior. I reduce two (02) months for the reconciliation with the victim. I reduce four (04) months for the early guilty plea.

“Henry”, now your sentence stands at six (06) months imprisonment.

“Henry”, you pleaded for forgiveness and applied for leniency in sentencing as you have now learnt a lesson and you will not re-offend. You urged Court to consider your wish to continue your relationship with the victim and your desire to get into the mainstream of the society. You were forceful and potent in your Plea for a ‘Non Custodial Sentence’.

In this context, I direct myself to consider the appropriate sentence on your conviction pursuant to your plea of guilty. In doing so, I am guided by the “General Principles of Sentencing”.

Under Section 26 (2) (B) of Sentencing and Penalties Decree 2009, a Sentence below two (02) years could be suspended.

A discussion of the process which should be undertaken when a judicial officer is considering a suspended sentence is found in the decision of the New Zealand Court of Appeal in R v. Peterson [1994] 2 NZLR 533.

There may be differences of details between the Fijian and New Zealand statutes. However, the principles stated in Petersen are helpful. These principles are summarized in the head note thus:

“The principal purpose of [the relevant section] was to encourage rehabilitation and to provide the Courts with an effective means of achieving that end by holding a prison sentence over an offender’s head. It was available in cases of moderately serous offending but where it was thought there was a sufficient opportunity for reform, and the need to deter others was not paramount. The legislature has given it teeth by providing that the length of sentence of imprisonment was fixed at the time the suspended sentence was imposed, that it was to correspond in length to the term that would have been imposed in the absence of power to suspend, and that the Court before whom the offender appeared on further conviction was to order the suspended sentence to take effect, unless of the opinion it would be unjust to do so. So, there was a presumption that upon further offending punishable by imprisonment the term previously fixed would have to be served (seep. 537 line 4).

The Court’s first duty was to consider what would be the appropriate immediate custodial sentence, pass that and then consider whether there were grounds for suspending it.

The Court must not pass a longer custodial sentence that it would otherwise do because it was suspended. Equally, it would be wrong for the Court to decide on the shorter sentence than appropriate in order to take advantage of the suspended sentence regime (seep. 538 line 47, p. 539 line 5). R V. Mah-Wingh (1986) 5 Cr App R (S) 347 followed.

The final question to be determined was whether immediate imprisonment was required or whether a suspended sentence could be given. If, at the previous stages of the inquiry, the Court had applied the correct approach, all factors relevant to the sentence were likely to have been taken into account already; the sentencer must either give double weight to some factors, or search for new ones which would justify suspension although irrelevant to the other issues already considered.

Like most sentencing, what was required here was an application of commonsense judgment, in which the sentencer must stand off and decide whether the imposition of a suspended sentence would be consonant with the objectives of the new legislation (see p.539 line 8, p. 539 line 37).

Petersen’s case was a prosecution appeal against leniency of sentence. Petersen had pleaded guilty at early opportunity, to reasonably serious drug offences: he was sentenced in the High Court to 18 months’ imprisonment suspended for 2 years plus 9 months’ periodic detention. He had no previous drug convictions and was aged 42 with family commitments. The New Zealand Court of Appeal considered Peterson’s offending so serious that it quashed the suspended sentence and imposed one of 18 months’ imprisonment concurrent on the several charges. The Court discussed at p. 539 the factors needing to be weighed in choosing immediate imprisonment or suspended sentence in these words:

“Thomas at pp.245-247 lists certain categories of cases with which suspended sentences have become associated, although not limited to them. We do not propose to repeat those in detail since broadly all can be analyzed as relating either to the circumstances of the offender or alternatively the offending. In the former category may be the youth of the offender, although this does not mean the sentence is necessarily unsuitable for an older person. Another indicator may be a previous good record, or (notwithstanding the existence of a previous record, even one of some substance) a long period of free of criminal activity. The need for rehabilitation and the offender’s likely response to the sentence must be considered.

It is clear that the sentence is intended to have a strong deterrent effect upon the offender; if the latter is regarded as incapable of responding to a deterrent the sentence should not be imposed. As to the circumstances of the particular case, notwithstanding the gravity of the offence, as such there may be a diminished culpability, arising through lack of premeditation, the presence of provocation, or coercion by a co-offender. Cooperation with the authorities can be another relevant consideration. All the factors mentioned are by way of example only and are not intended as an exhaustive or even comprehensive list. The factors may overlap and more than one may be required to justify the suspension of the sentence in any particular case. Finally, any countervailing circumstances have to be considered. For example, in a particular case the sentence may be regarded as failing to protect the public adequately.

In concluding our consideration of the principles, we wish to add this. Understandably, the form of the legislation requires the sentencer to pass through a series of statutory gates, before reaching the point of availability of a suspended sentence. Subject to that however, like most sentencing what is required in the end is an application of commonsense judgment, in which the sentencer must stand off and decide whether the imposition of a suspended sentence would be consonant with the objectives of the new legislation. In many instances an initial broad look of this kind will eliminate the possibility of a suspended sentence as an appropriate response”.

D.A. Thomas in “Current Developments in Sentencing” (1969) Crim. L.R. 237 said:

“The court has refused to order suspension of a sentence passed for what amounted to a series of offences rather than an isolated one; in cases where the offence exhibits a degree of careful premeditation, or where the offence amounts to a serious breach of trust. The court is also reluctant to order suspension where the length of the term of imprisonment already makes substantial allowance for the factors which are urged as a basis for suspension.”

In O’Keefe (1969) 1 ALL ER 426, the English Court of Appeal noted that;

"The court must go through the process of eliminating other possible courses such as absolute discharge, conditional discharge, probation order, fines and then say to itself: this is a case for imprisonment, and the final question, it being a case for imprisonment, is immediate imprisonment required, or can I give a suspended sentence?"

In Fiji, concern has repeatedly been expressed by the courts about the over-use of the suspended sentence. Byrne J in Nand Kumar –v- The State Crim. App. No. HAA0115.2002L said –

"In line with other judges I have frequently expressed the view that suspended sentences generally are a snare and a delusion in that they tend to give a person convicted a false sense of security and leave him under the mistaken belief that he has not done any wrong because he has not been sent to prison"

Grant C.J. said in DPP –v- Jolame Pita 20 FLR 5:

"Once a court has reached the decision that a sentence of imprisonment is warranted there must be special circumstances to justify a suspension, such as an offender of comparatively good character who is not considered suitable for, or in need of, probation, and who commits a relatively isolated offence of a moderately serious nature, but not involving violence. Or there may be other cogent reasons such as the extreme youth or age of the offender, or the circumstances of the offence."

At this stage I remind myself about the facts set out below:

(1) Abuse of trust and power.
(2) Use of a weapon (kitchen knife) to injure the victim.
(3) Commission of the offence while under the influence of alcohol.
(4) Offence was committed in the presence of the relatives.
(5) Deliberate and gratuitous violence.
(6) Provocation was minimal.
(7) In prosecution of the offence, you forcefully entered the house of the victim's brother and dragged her out.
(8) The offence was pursued despite the apology by the victim.
(9) After the incessant attack with the kitchen knife, you furthered the attack with many punches which is reflective of brutality at its highest.
(10) Before the incessant attack with the kitchen knife, the victim was showered with abusive language in the presence of her relatives.
(11) The first injury – the laceration at the right base of neck is a vulnerable area in the body.

Upon a careful consideration of the facts set out above, there can be no escaping the fact that this was a vicious attack on a defenceless woman in the presence of her relatives despite her apology to the offender.

There is evidence that the victim slipped out of the party. But the act of deliberately stabbing the victim with a kitchen knife in the region of right base of neck – a vulnerable area in the body is completely out of proportion to any provocation.

"Henry", your behaviour was extremely high handed. This court will never condone unnecessary and gratuitous violence to a spouse in a domestic environment.

Clearly any sentence I pass on you must reflect the abhorrence of the community and the need to deter.

Your de-facto partner informed court that she has forgiven you and you reconciled with her.

"Henry", there is nothing wrong in the reconciliation.

But I note that it is affected by emotional attachment and values driven belief that violence in a family is inevitable and must be endured.

However, the reconciliation is without any protection against further future violence. All persons must be able to live in their own homes without fear of assault or attack.

"Henry", you expressed your wish that the relationship be permitted to continue. I hold that by giving effect to it will expose the victim to a real risk of further violence.

As a matter of general principle, a sentence imposed for an offence of violence should be determined by the seriousness of the offence, not by the expressed wish of the accused or the victim.

"Henry", you have used a kitchen knife to injure your de-facto partner in a domestic environment.

At this stage, I address my mind to the following decision:

In "The State v Mosese Jeke" Cr. App HAA 010.2010, Goundar J concluded,

"The court would not condone the use of a cane knife in a family conflict. The circumstances of the case warranted (the) imposition of a sentence on the respondent despite his previous good character."

Fiji is a party to the "United Nations Convention on the Elimination of Discrimination against Women" (CEDAW) and objects of the Decree include the implementation of CEDAW. Domestic violence is a form of discrimination against women. By ratifying CEDAW, Fiji has undertaken to protect women from gender- based violence.

"Henry", I am mindful to the fact that you are a first offender. I state that the previous good character does not account for the suspension of the sentence. That had already been allowed for in the reduction of the head sentence.

I refer to "Thomas" on "Principles of Sentencing" Second Edition Page 199, where it is said that having no previous conviction would not warrant a suspension of a sentence, only a reduction in the head sentence.

I hold that you are disentitled to any suspension of sentence because this was a vicious attack with a kitchen knife on a defenceless woman in the presence of her relatives despite her apology to the offender. The throwing of many punches immediately after the incessant attack with the kitchen knife on the defenceless woman is reflective of brutality at its highest.

At this stage, I address my mind to the following decision;

"State v Tilalevu" [2010] FJHC 258; HAC 081 2010; (20 July 2010),

"...the imposition of suspended terms on first offenders would infect the society with a situation – which I propose to invent as "First Offender Syndrome" – where people would tempt to commit serious offences once in life under the firm belief that they would not get imprisonment in custody as they are first offenders. The resultant position is that the society is pervaded with crimes. Court must unreservedly guard itself against such a phenomenon, which is near certainty if suspended terms are imposed on first offenders as rule"...

"Henry", in the circumstances I decline your plea for a suspended term, since this case does not qualify such course of action.

I sentence you for six (06) months imprisonment.

Assault causing actual bodily harm is listed as a domestic violence offence in Schedule 1A of the Decree.

Section 24 (a)(b)(i) of the Decree provides:

(a) Subject to subsection (3) but notwithstanding any other provision in this Decree-

(b) Where a person -

(i) pleads guilty to, or is found guilty of, an offence which is a domestic violence offence;

(ii) the Court must make a domestic violence restraining order under this Decree for the safety and wellbeing of the person against whom the offence or alleged offence was committed;

(iii) where subsection (1) applies the Court need not make an order under this section if satisfied that, having regard to the safety and wellbeing of the person for whose protection the order would be made, the order is not required.

Section 24(1) (b) (i) is a mandatory provision. The only discretion given to the Court is when the safety and wellbeing of the victim is a non-issue. In this case, since the accused is convicted of a domestic violence offence and the safety and wellbeing of the victim is an issue, the Court has no discretion but to issue a restraining order against the accused in addition to the sentence.

I issue a restraining order for the safety and wellbeing of the victim:

➢ NON MOLESTATION

In accordance with section 27 of the Decree, the following standard non-molestation conditions apply to this Order: The terms of the order are that the accused must not:

• Physically assault the victim.
• Threaten to physically assault the victim.
• Damage or threaten to damage any property of the victim.
• Threaten, intimidate, or harass the victim.
• Behave in an abusive, provocative or offensive manner towards the victim.
• Encourage any person to engage in abusive, provocative or offensive manner towards the victim.
  

28 days to appeal.

Dated at Nasinu on the 27th day of August, 2014.

Jude Nanayakkara [Mr.]
RESIDENT MAGISTRATE

Magistrate Court – 02
NASINU