State v Waqa [2014] FJMC 16; Criminal Case 226.2013 (20 January 2014)

IN THE MAGISTRATE COURT OF FIJI
AT TAVUA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. 226/13

BETWEEN:

THE STATE

AND:

KEMUELI WAQA

Prosecution: PC Nitesh
Accused: In Person

SENTENCE

1. Kemueli Waqa 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 pleaded guilty to the charge on your own free will. You admitted the facts submitted by prosecution. The Court being satisfied that your guilty plea being unequivocal convicted you as charged.
   
3. On 31st October 2013 at 10pm at Matanagata Settlement Vatukoula you had an argument with the complainant (Inise Kuruira, 26yrs) your wife after she returned from her sister's place. During the heated argument you got angry and punched her on the head, face and ribs.

The matter was reported to police and you were arrested and questioned for the allegation and charged accordingly.
The complainant was also taken for medical examination and her medical report shows the injuries consistent with the alleged assault.

4. You mitigated and I take the following in your favour:
   
   • Your guilty plea.
   • This is your first offence.
   • You've remorseful and reconciled with your wife.
   • You've the sole breadwinner.
     
5. I consider the following as aggravating features in this case:
   
   • Breach of trust.
   • Lack of provocation.
     
6. 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.
   
7. Due to your relationship with the complainant, the offending in this matter is regarded as a domestic violence offence. In considering the circumstances of the offending in this case, I take a starting point of 12 months.
   
8. For the aggravating features I increase your sentence by 2 months making your sentence at 14 months imprisonment.
   
9. I deduct 3 months for your mitigation and this being your first offence. For your guilty plea I further reduce your sentence by 4 months. Your final sentence is now 7 months imprisonment.
   
10. Considering the circumstances of the offence and your background it would be appropriate that you be given the opportunity to reform yourself. Your sentence of 7 months imprisonment will hence be suspended for 2 years.
    
11. If you commit any offence within the operational period of 2 years, you'll be further charged for breaching this suspension order and if convicted, you'll be made to serve the 7 months with any other punishment imposed in that other case.
    
12. In addition the court also orders that you pay a fine of 3 penalty units ($300.00) as fine which is to be paid within 21 days. In default 30 days in prison.
    
13. Further the domestic violence restraining order imposed by the court on 15/11/13 is now made permanent and can only be varied, suspended or discharged by further orders of the court.
    
14. 28 days to appeal.
    

Samuela Qica
Resident Magistrate

20th January 2014