State v Matarugu [2015] FJMC 26; CR359.2014 (26 February 2015)

IN THE RESIDENT MAGISTRATE'S COURT
AT NADI FIJI ISLANDS

CRIMINAL CASE NO 359 Of 2014

STATE

V

SAIYASI MATARUGU

BEFORE: Resident Magistrate, Kashyapa Wickaramasekara
DATE: Thursday 26th February 2015
COUNSEL : Mr. Nuidamu for the DPP
Mr. Mohammed (LAC) for the Accused

SENTENCE

1. You, SAIYASI MATARUGU, were charged by this court, for the offence of Assault Occasioning Actual Bodily Harm, which is punishable under Section 275 of the Crimes Decree No 44 of 2009.

2. You pleaded guilty for the said offence on the 18th of August 2014 on your own will and accord. I am satisfied that you fully comprehended the legal effect of your plea and your plea was voluntary and free from influence. Further, you admitted to the Summary of Facts that was read over and explained to you in Court, which supported the elements of the charge. As such you are found guilty and convicted by this court as charged, for the offence of Assault Occasioning Actual Bodily Harm.

3. Summary of facts, as admitted by you before this court, revealed that this offence was committed on the 19th of April 2014, at After Dark Night Club, Namaka, Nadi.

4. Further, the summary of facts revealed, that you assaulted the Complainant, your wife.

On the day of the incident Complainant had come looking for you at the After Dark Night Club, where she had noticed you drinking with another girl. Complainant, then started drinking with her cousin, witness Amelia Tuba.

After a while the Complainant having noticed you going out with the same girl, followed you and interrupted and informed the girl with you that the Complainant is your wife.

You thereafter had gone back inside the club and had assaulted the Complainant on her face and head whereby she had fallen on the ground, feeling dizzy and unable to standup.

As per the Medical Report on the Complainant she has received a 'laceration on the upper lip with clots noted on the injury site and left side lip swollen. Further there had been an open wound {0.5cm) lateral to left side lip'.

You have admitted to the allegation when questioned under caution during police investigations.

5. Submissions in mitigation inter alia has prayed for not to record a conviction. The ground on which this plea is made is your employment as a police officer and the consequences a conviction would have on your employment.

State in filing sentencing submissions had opposed this application.

This court shall explore the legal boundaries of this application before moving on to decide a suitable sentence on you.

The application not to record a conviction is based on the provisions of section 16 of the Sentencing and Penalties Decree 2009. However it is interconnected with the range of sentencing orders a court can make under section 15 of the Decree. I shall reproduce here both the sections for the sake of clarity.

Section 15 of the Sentencing and Penalties Decree:

(1) If a court finds a person guilty of an offence, it may, subject to any specific provision relating to the offence, and subject to the provisions of this Decree-

(a) record a conviction and order that the offender serve a term of imprisonment;

(b) record a conviction and order that the offender serve a term of imprisonment partly in custody and partly in the community;

(c) record a conviction and make a drug treatment order in accordance with regulations made under section 30;

(d) record a conviction and order that the offender serve a term of imprisonment that is wholly or partly suspended;

(e) with or without recording a conviction, make an order for community work to be undertaken in accordance with the Community Work Act 1994 or for a probation order under the Probation of Offenders Act [Cap. 22];

(f) with or without recording a conviction, order the offender to pay a fine;

(g) record a conviction and order the release of the offender on the adjournment of the hearing, and subject to the offender complying with certain conditions determined by the court;

(h) record a conviction and order the discharge of the offender;

(i} without recording a conviction, order the release of the offender on the adjournment of the hearing, and subject to the offender complying with certain conditions determined by the court;

(j} without recording a conviction, order the dismissal of the charge; or

(k} impose any other sentence or make any other order that is authorized under this Decree or any other Act.

(Sub-Sec. 2-5 not relevant for the purpose)

Section 16 of the Sentencing and Penalties Decree:

(1} In exercising its discretion whether or not to record a conviction, a court shall have regard to all the circumstances of the case, including­

(a) the nature of the offence;

(b) the character and past history of the offender; and

(c) the impact of a conviction on the offender's economic or social well-being, and on his or her employment prospects. (Sub-Sec.2 & 3 not relevant)

6. It is clear from the above two sections that not recording a conviction would limit the range of sentencing orders a court can make and as such shall be sparingly exercised. Thus it cannot be said that at any instance a court finds a ground under section 16 is satisfied a conviction should not be recorded. Certainly there should be a criteria to exercise the discretion of the court not to record a conviction largely owing, in my view, to the nature and seriousness of a charge among many other considerations.

As the counsel for the State has correctly highlighted the case of Botaki v State [2012]

FJHC 1250; HAA015.2012 (1 August 2012) clearly highlights these considerations.

In this case Hon. Justice P. Madigan held thus;

"The operative word in this section is //discretion11

Just because an offender will lose his job/ and just because he will be affected economically does not mean that it is mandatory for a Magistrate to invoke the provisions of this Section. Where a Magistrate has exercised his discretion within the bounds of his power, that it would be in a very exceptional circumstances that an appellate court would interfere with that exercise.

8. This is particularly so in cases of Domestic Violence which this case is. The Domestic Violence Decree is clearly a Decree which aims to provide greater protection from Domestic Violence and it would not be in the spirit of this legislation to not record a conviction against a perpetrator.

9. The appellant has pleaded guilty to the offence and admits facts which go to the elements of the offence. The fact that he holds a career position as a Vice Principal is of no moment. This Court treats perpetrators alike be they poor or rich/ of high or lowly status.

10. The appeal against conviction is dismissed.//

In the highest sense of clarity the High Court of Fiji has ruled out 'domestic violence offences' from the range of offences a court can act without recording a conviction. Thus your plea for not to record a conviction is hereby refused and accordingly the conviction is recorded.

7. I now turn to decide a suitable sentence on you. I shall consider the appropriate sentence on you under the general principles and guidelines on sentencing and range of sentencing orders as set out in Sections 04 and 15 of the Sentencing and Penalties Decree 2009 in line with the objectives thereof. I shall further give special attention to Section 4 (3) of the Decree which reads as follows;
(3) 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 behaviour; 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 behaviour, or is willing to undertake such counseling or seek such assistance.

8. Having said that, I shall now explore the prescribed penalty and the tariff for this offence.
The maximum punishment for Assault Occasioning Actual Bodily Harm is 05 years of imprisonment.

The tariff for this offence; "...ranges from a suspended sentence where there is a degree of provocation and no weapon used, to 09 months imprisonment for the more serious case of assault" State v Anjula Devi (Criminal Case No. 04 of 1998 lab) as cited with approval by Hon. Justice Goundar in Sereka v State (2008) FJHC 88, HAA027.2008
{25 April 2008). Hon. Justice Madigan held in State v Sikitora (2010) FJHC 466;

HAC067.2010l{22 October 2010) that "The cases of Elizabeth Joseph v State {2004) HAA 03 of 2004 and State v Tevita Alati (2004) HAA 73 of 2004 establish a tariff 09 months to 12 months imprisonment, the severity of the wound being the determining factor in the starting point. However, sentences of 18 months imprisonment have been upheld in Domestic Violence cases Amasi Korovata v State {2006) HA 115 of 2006".

9. As per the facts, I do not conclude that this incident was unprovoked. Further there are no weapons used in the commission of the offence. However the injuries on the Complainant appear to be moderate as per the medical report. As per above facts and circumstances I conclude that this offence warrants a prison term and accordingly selects 09 months imprisonment as the starting point.

The fact that you have seriously breached the trust reposed on you by the Complainant as her husband and the fact that by assaulting her in public reflected cruel and degrading treatment towards the Complainant clearly aggravates the offence.

To reflect upon the aggravating factors I add 10 months to your sentence bringing your sentence up to 19 months.

10. I now consider the facts in mitigation.

• You are a young first offender and a well-respected police officer amongst your superior officers having a 10 year service history.

• You express remorse and promise not to reoffend.

• You have a family with a young child that you financially support.

• You have pleaded guilty to the offence saving time and resources of court and the state.

To reflect the mitigating factors (except for the early guilty plea) I discount your sentence by 04 months and the guilty plea is separately discounted for by a further 05 months.
Thus the final sentence on you for the offence of 'Assault occasioning Actual Bodily harm' is 10 months imprisonment.

11. Having in mind the provisions of Sec.26 of the Sentencing and Penalties Decree, I do concede that this court has the power to suspend your sentence since it is less than 02 years of imprisonment.

12. Directing my mind on the guideline cases on suspension of sentences; DPP v Jolame Pita (1974) 20 FLR 5 and more recently DPP v Saviriano Radovu (1996) 42 FLR 76 and Deo v State (2005) FJCA 62, I shall consider whether there are any special circumstances to justify a suspension of your sentence.

13. Upon the above line of authorities I find the following facts to exist in this case.

• Conduct on the part of the Complainant partially provoking the incident.

• No serious or permanent physical injuries caused to the Complainant.

• Being a person of good character having a clear criminal record for the past 33 years.

• No weapons used in the commission of the offence.

• No evidence of continuous violence towards the Complainant.

• No evidence of past history of domestic violence.

14. Accordingly, I am of the view that you should be availed of another opportunity to rehabilitate in the main stream without getting mixed with hardened criminals within the four corners of a prison cell. In the interest of justice, I am therefore satisfied that above factors are to be considered special circumstances justifying a suspension of your sentence.

15. You are therefore explained of the scope and effect of a suspended sentence and further the consequences that would follow if you commit another offence during the period of suspension.

Having explained the same, I now proceed to suspend your sentence for a period of 03 years.

16. In the final outcome, your sentence is 10 months imprisonment term suspended for 03 years.

17. Further to your imprisonment term, considering the fact that this offence is one of domestic violence, I further make the Interim DVRO; issued against you on the 30th April 2014, on standard non molestation condition, a final Domestic Violence Restraining Order, pursuant to sec.24 and 28 of the Domestic Violence Decree. This Domestic Violence Restraining Order shall be in force until and unless varied or suspended by a competent court. Breach of this order shall result in you being charged and prosecuted for an offence pursuant to sec.77 of the Domestic Violence Decree.

18. You have 28 days to Appeal.

Kashyapa Wickramasekara,

26/02/2015 Resident Magistrate.