State v Soronaivalu [2015] FJMC 12; Criminal Case 06.2015 (4 February 2015)

IN THE RESIDENT MAGISTRATE’S COURT

WESTERN DIVISION-SIGATOKA

Criminal Case No:- 06/2015

STATE -V- SEPETI SORONAIVALU

Details

BEFORE : Resident Magistrate, Tomasi Bainivalu

For Prosecution : Sgt Shamim.H

For Accused : Mr Tuicolo of LAC

Date of Sentence : 04^rd February, 2015 @ 12.00pm

SENTENCE

Introduction

1. You “SEPETI SORONAIVALU” had been remanded since the 12/01/2015 until to date. And you are here today, to be sentenced on admission of guilty on your own accord for the two offences of Assault Occasioning Actual Bodily Harm contrary to section 275 of the Crimes Decree No.44 of 2009, being count 1 and Breach of Domestic Violence Restraining Order: contrary to section 77[1][a] of the Domestic Violence Decree of 2009, being count 2. I therefore convicted you as charged accordingly on both counts.
   
   2. According to the summary of facts tendered by the Prosecution which you admitted in open court, that on the 09/01/2015 at Natadola Beach with the church youth members, having picnic. You then told the victim/wife to relay the message to an uncle as you wanted to return to the village. The victim/wife was late to return to you for the feedback; you then searched for her and later found her swimming in the sea. You got angry and slapped the victim on the face where she received injuries. Later after the victim/wife reported the incident to the Police, it was then revealed that the victim/wife had filed a DVRO application and an order was made to the same; Police then charged you for the two counts above.

The penalty and tariffs

3. According to the section 275 of the Crime Decree of 2009, the offence of Assault Occasioning Actual Bodily Harm is the summary offence and maximum sentence could be imposed against you for the said offence of is 5 years imprisonment. The tariff for the offence of Assault Occasioning Actual Bodily Harm range 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. (Gounder J in Jonetani Sereka v The State 2008,FJHC 88, HAA027,2008), (State v Anjula Devi, Crim Case No 04 of 1998).
   
4. And according to section 77[1][a] of the Domestic Violence Decree of 2009; the maximum penalty for this offence is a fine of $1,000 and a term of imprisonment of 12 months. There is no stated tariff for this offence, no doubt out of the rarity of these offences. It is accepted though, that the tariff for any offence is usually a period ending well below the statutory maximum.
   

Aggravating factors

5. According to the information revealed by the summary of facts placed before the court, you slapped the victim during the youth picnic; this is a very humiliating act of disrespect as you did the same in the presence of other youth members from your church. As a result, your wife/victim sustained injuries as per medical report tendered by prosecution.
   
6. And also your act on the day in question had shown a breach of trusts between you and your spouse/victim; instead of trusting to protect and care for her wellbeing and safety, you did the opposite.
   
7. I had also perused the DVRO file No.11/14 and noted on record that you admitted assaulting your wife/Applicant/protected person, in November 2013 and also on the 19/January/ 2014; as a result the existing DVRO was made final and still exist to date.

Mitigating Factors.

8. I have also perused the mitigating submissions from your LAC Counsel, and noted as follows in brief:-
   • 28 years of age and a farmer;
   • Married to the victim and 1 child who is 1 year old, resides at Nawamagi village;
   • Breadwinner & helps cater for the family expenses;
   • Helps & look after his 57 year old and 48 year old parents respectively;
   • No weapon used and assault would not have happened if the complainant had returned with the feedback sooner;
   • He is tasked with looking after cultural, religious and other family obligations;
   • Fully co-operated with police during the investigations;
   • Remorseful of what he had done and seeks the courts forgiveness and is very affectionate about his family, especially with his son; and felt sorry for the injuries caused to the victim/wife.
     
9. The Defence Counsel also called the victim/wife yesterday to court, the court briefly conducted a sentencing hearing where she told the court the following under oath:

“Accused is my husband and we’ve been married since 2013.I know that this is not a reconcilable offence; but we have a child who is 1 year old and I wanted to reconcile with him because no one supports me and our son, but the accused alone; as he is the only bread winner. At the moment we are alone in the house and nothing at home. I have forgiven my husband and no one forced me to reconcile with him.”

10. Prosecution chose not to ask any questions in cross-examination to the victim.
    

Brief Comments

11. This is off course a domestic violence offence in nature; where you extended the violence against the victim who lived with you and most importantly, she is your wife. Having stated thus, it is a duty of the court to exercise its judicial responsibility to protect women and children against the violence act extended against them in various form. Violence against women is a prevalent act of crime in our society today.
    
12. The accused committed the assault towards his wife/victim when there is an existing DVRO in place. At the same token, before I activate Section 77 (1) (a), Domestic Violence Decree of 2009, it is the courts duty to ensure that the qualifying term “without reasonable excuse contravenes the order” has being satisfied. From the summary of facts and mitigation, it is apparent that the underlying cause of the breach of the DVRO is simply the loss of control of your frustration, resulting; which you may have thought on the day in question; is the best resort to cool off your frustrations, was to lay a hand upon your wife/victim; irrespective whether it was a slap or a punch, still it results to violence. Considering the whole circumstances of the case, I hold the view that there was no reasonable excuse to breach the DVRO.
    
13. If I may add, that it was interesting to note that the LAC Counsel had raised this as mitigating factor, i.e. ”assault would not have happened if the complainant had returned with the feedback sooner” this sentiment alone in my view is a stereotype that this court must be very cautious not to dwell into. Is this an invitation to husbands out there? that solution to any couples’ misunderstanding, differences and animosities is to resort to violence? I totally disagree and disregard such factor as a mitigating one; not in my court.
    

Final Order

14. Wherefore, after taking all the above into considerations I will now sentence you SEPETI SORONAIVALU as follows:-

Count 1-[ACABH]

• I start with an imprisonment term of twelve (12) months;
• I add eight (8) months for the aggravating factors;
• I reduce three (3) months for your early guilty plea which had saved the courts and prosecutions time and expenses;
• I further reduce six(6) months for the mitigation and its factors outlined by your Counsel;

Your total sentence in the interim for count 1 is eleven (11) months imprisonment.

Count 2-[Breach of DVRO]

• I start with an imprisonment term of eight (8) months;
• I add another two (2) months for the for the aggravating factors;
• I reduce three (3) months for your early guilty plea which had saved the courts and prosecutions time and expenses;
• I further reduce six(6) months for the mitigation and it factors outlined by your Counsel;

Your total sentence in the interim for count 2 is one (1) month imprisonment.

15. Considering the totality principle, as the two counts related to one set of facts, I decided to have the term above run concurrently; therefore the total term to serve at the Correction Center is eleven (11) months.
16. You SEPETI SORONAIVALU , had already served twenty six (26) days in custody, therefore I will deduct the same from the eleven (11) months, thus leaves the total period to ten (10) months and four (4) days in carceration.
    
17. In pursuant to section 26 of the Sentencing and Penalties Decree 2009, any sentence less than 2 years I have powers to partly or wholly suspend; therefore having considered section 4(1)(2) and section 4 (3) of the Sentencing and Penalties Decree 2009, and the intent of the Domestic Violence Decree, 2009 and the history of disputes and violence in your married life, I am of the view that a deterrence sentence is appropriate to remind in mind offenders of domestic violence and you the offender, that this court do not tolerate such behavior.
    
18. I hereby sentence you SEPETI SORONAIVALU to six (6) months and four (4) days to serve at the Correction Center and the remaining four (4) months to be suspended for a period of two (2) years.
    
19. If you committed any crime during the period of two (2) years after being released from prison and found guilty by the court, you will be liable to be sent to prison to serve the four (4) months which is now suspended by this court.
    
20. I hereby remind you SEPETI SORONAIVALU that the existing DVRO on case number 11/14 still stand and shall continue.
    

28 days to appeal.

.................................
Tomasi Bainivalu [Mr]
Resident Magistrate,
SIGATOKA.
04/Feb/2015

TO:
:-The Prosecution
:-The Accused/counsel-LAC
:-File copy: C/No 06/2015