State v Davetawalu [2015] FJMC 102; Criminal Case 1341.2015 (28 September 2015)

IN THE MAGISTRATES’ COURT OF FIJI
AT SUVA
Criminal Case No: - 1341/2015

STATE

V

MOSESE DAVETAWALU

For the prosecution: PC Walter
For the accused: Ms. K. Boseiwaqa (LAC)
Date of Sentence: 28th of September 2015

SENTENCE

1. MOSESE DAVETAWALU , you were charged in this Court for one count of Assault Occasioning Actual Bodily Harm contrary to section 275 of the Crimes Decree No.44 of 2009 and one count of Breach of Suspending Sentence contrary to section 28 of the Sentencing and Penalties Decree.
   
2. You pleaded guilty for both counts and also admitted the summary of facts. According to the facts on 01st July 2015, after questioning your wife of her late return, you assaulted her stomach and head causing injuries. At that time you were on a suspended sentence issued on 07/07/2014 for similar offence.
   
3. I am satisfied that your plea was unequivocal and convict you for this charge.
   
4. I am mindful that since this is a domestic violence offence and therefore I have considered the Section 4(3) of the Sentencing and Penalties Decree in addition to other provisions in the Decree .
   

The Law and the Tariff

5. The maximum penalty for this 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. 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 or the more serious cases of assault.
   
8. In domestic violence cases sentence of 18 months imprisonment have been upheld. (Amasi Korovata v The State [2006] HAA 115.2006S)
   
9. For breach of suspended sentence the court may impose a fine of 100 penalty units and restore the sentence that was suspended.
   

Aggravating Factors

10. There are number of aggravating factors in this case. You assaulted you wife, the mother of your 02 children and breached the trust placed on you by your wife.
    
11. This was committed against your wife and therefore this falls under a domestic violence offence .
    

Mitigating factors

12. In her comprehensive mitigation the counsel has highlighted the following points:
    
    1. You are 34 years old;
    2. Married with 04 children;
    100. Reconciled;
    4. Co-operated with the police;
    5. Gone for counseling to control anger.
       
13. Considering the gravity of offending, I select 06 months as the starting point for the 1st count and add 10 months for aggravating factors to reach 16 months. For the above mitigating factors deduct 04 months and for early guilty plea deduct 1/3 to reach 08 months imprisonment.
    
14. Even though you are asking for a second chance I do not find any valid grounds to grant that. You have pleaded guilty and also gone for counseling which are good mitigating factors. But within a year you have reoffended. Unfortunate thing is your previous convictions were also against your wife. The purpose of a suspended sentence is for reform and in this case you have not learned. Therefore to denounce your behavior as well as to deter custodial sentence is needed. But considering the difficulties that would face by you as well as your family, I would not make any orders with regard to a fine or restoration of suspended sentence with regard to the second count.
    
15. Accordingly I sentenced you to 08 months imprisonment for the offence of Assault Occasioning Actual Bodily Harm contrary to section 275 of the Crimes Decree No.44 of 2009.
    
16. For the safety of the complainant as well as her children I also issue a permanent domestic violence order with standard non-molestation conditions.
    
17. 28 days to appeal
    

Shageeth Somaratne
Resident Magistrate