State v Korovata [2015] FJMC 20; Criminal Case 968.2014 (20 February 2015)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA
Criminal Case No: - 968/2014

STATE

V

AMASI KOROVATA

WPC Kalara for the prosecution
Ms.Malimali for the accused
Date of Sentence: 20th February 2015

SENTENCE

1. AMASI KOROVATA, 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.
   
2. You first appeared before this Court on 10/07/2014 and pleaded not guilty for this charge. Thereafter the hearing was fixed for 20/10/2014 but this was vacated due to an application made by the defence to consider withdrawing of charge by the victim . In the meantime for the safety of her this Court also issued an interim DVRO .
   
3. After numerous adjournments when this was called before me again on 18/02/2015 the prosecution quite rightly informed that even though the victim has indicated to them about withdrawal they would proceed with this matter.
   
4. Thereafter the counsel submitted to this Court that the accused wants to change his plea and after the charge was read he pleaded guilty and also admitted the summary of facts.
   
5. Summary of facts states as follows:
   
   • ❖ On Saturday 07/06/14 at about 0600hrs when one Mereoni Bainitabua (PW-1), 39 yrs, Self Employed of Komave Settlement came home drunk and was lying on the porch outside when her husband Amasai Korovata (accused) 49 yrs, self employed of Komave Settlement took one piece of word and hit (PW-1) and punched (PW-1).
     
   • ❖ (PW-1) arrived home drunk and was lying on the porch outside when the (accused) and her children were sleeping inside the house.
     
   • ❖ (PW-1) was not that drunk.
     
   • ❖ (PW-1) was about to vomit when (PW-1) saw (accused) coming out from the house.
     
   • ❖ (Accused) came out from the house and took (PW-1) and threw (PW-1) to the steps.
     
   • ❖ (PW-1) landed on the ground and pick up one piece of wood and want to hit the (accused).
     
   • ❖ When (PW-1) look up at (accused). (PW-1) saw (accused) with another pieces of wood on his hand.
     
   • ❖ (Accused) came down to the step with the piece of wood.
     
   • ❖ (Accused) started to hit (PW-1) on (PW-1)’s right arm, right hand and on left middle finger.
     
   • ❖ After the (Accused) punch (PW-1) three times on her head.
     
   • ❖ While (Accused) was punching (PW-1) then the (Accused) cousin namely John Latu seen this entire thing and tell the (accused) to stop it and then the (accused) stop hitting (PW-1).
     
   • ❖ (PW-1) got injured.
     
   • ❖ (PW-1) reported the matter to the police and (accused) was arrested interviewed under caution also charged ASSAULT CAUSING ACTUAL BODILY HARM contrary to Section 275 of Crimes Decree No. 44 of 2009.
     
   • ❖ The (accused) was bailed to attend Suva Magistrates Court on 10/07/14.
     
6. This Court is satisfied that your plea is unequivocal and convicts you for this offence.
   
7. I am mindful that since this is a domestic violence offence I have to consider the Section 4(3) of the Sentencing and Penalties Decree also in addition to other provisions in the decree . 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.

The Law and the Tariff

8. The maximum penalty for this offence is 05 years imprisonment.
   
9. 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.
   
10. In “State vs Anjula Devi” Criminal Case No. 4 of 1998 Lab, it was held that the tariff for “ Assault Ooningalctual Bodily dily Harm&##82;” ranges from a suspended sentence where there is a degree of provocation and no weapon used, to 9 m imprent o more serious cases of assault #160;.
    .
    
11. In domestic violence cases sentence of 18 months imprisonment have been upheld. (Amasi Korovata v tate [2006] HAA 115A 115.2006S)

Aggravating Factors

13. There are number of aggravating factors in this case. You assaulted you wife , the mother of your 04 children and breached the trust placed on you by your wife.
    
14. You used a piece of wood for your assault which would be considered as another aggravating factor .
    
15. This was committed against your wife and therefore this falls under a domestic violence offence .
    

Reconciliation

16. The learned counsel for the accused called the complainant as a witness in her mitigation submission and she said in oaths that the parties have reconciled
    
17. . In Raisoqoni v State [2011] FJHC 32; HAA 004.2011 (7 February 2011) his Lordship Justice Gounder held that:
    

"'The Domestic Violence Decree has changed the old law. Under the new law, domestic violence offences are not reconcilable and therefore there is no discretion given to the courts to encourage reconciliation. However, if the victim freely reconciles with the partner and gives evidence of that effect, reconciliation is a factor that ought to be taken into account in sentencing the offender........"

18. Therefore if the parties have reconciled that would be considered only as a mitigating factor . But the Court has to be really satisfied that these reconciliations in domestic context to be genuine and the victims were not compelled to reconcile.
    
19. This was discussed in Botaki v State [2012] FJHC 1250; HAA 015.2012 (1 August 2012) where his Lordship Justice Madigan held that:
    

"The question of reconciliation in a Domestic Violence is a difficult one. It is quite clear that it is not a reconcilable offence, it being a domestic violence case and that being so, reconciliation as a mitigating factor is of very dubious value. A female victim will nearly always say that the parties are reconciled because she will fear the loss of the family breadwinner and supporter or she is forced to say it by her accused husband. A sentencing tribunal should always therefore look at a submission of reconciliation with great caution and suspicion. In this case, although the Magistrate has listed reconciliation as a mitigating factor, he later expresses doubts whether it was voluntary or not because the victim did not confirm it in Court. It was a submission of the accused."

20. The complainant after taking oaths said that she has reconciled with the accused and got 04 children from the accused and he is the sole bread winner of the family. The prosecution did not cross- examine the witness. But answering to my questions she again confirmed that the accused is supporting her and the children and also she is expecting another child from him.
    
21. Therefore I am not surprised that the complainant would have been prepared to withdraw this matter or inform this Court that she has reconciled. And after considering these I do not regard this as a genuine reconciliation which would have led to some discounts for your final sentence.
    

Mitigating factors

22. Even in mitigation stage you did not show any remorse or asked forgiveness from this Court. But you pleaded guilty without going for a hearing and for that you need some discount.
    
23. 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..

24. Apart from that I do not find any other grounds to consider as mitigating factors in this case.
    
25. After considering the facts in this case as well your previous convictions for similar kind of offences I select 08 months ( higher end of the tariff) as the starting point for your sentence. For the aggravating factors mentioned in above I add 12 months to reach 20 months imprisonment. For pleading guilty I deduct 04 months to reach 16 months imprisonment. This is within the tariff for domestic violence offences.
    
26. Finally I have to decide if I am going to suspend this sentence. But there are number of reasons which demand a custodial sentence in this case.
    
27. Normally a suspended sentence is to be given for a young offender or a first offender. You do not fall in to any of those categories. Also your past history is full of similar offences which show that no purpose would be served by a non- custodial sentence.
    
28. Unfortunate thing is that when questioned by this Court regarding your previous convictions for similar offences you informed that they were committed against the same complainant.
    
29. This clearly indicates that you continue with this violent behavior against your partner . Therefore a custodial sentence is required to deter you from committing these offences in future against your wife as well as for her safety .
    
30. Accordingly I sentenced you to 16 months imprisonment for the offence of Assault Occasioning Actual Bodily Harm contrary to section 275 of the Crimes Decree No.44 of 2009.
    
31. Also considering the past history of you I also fix 10 months as non- parole period for your sentence.
    
32. For the safety of the complainant as well as her children I issue a permanent domestic violence order with standard non-molestation conditions.
    
33. 28 days to appeal
    

H.S.P.Somaratne
Resident Magistrate