State v Qativi [2015] FJMC 66; Criminal Action 258.2014 (22 May 2015)

IN THE MAGISTRATE'S COURT AT SAVUSAVU
CRIMINAL JURISDICTION

Criminal Action No.258 of 2014

STATE

v

RAFAELE NAKIDI QATIVI

Prosecution : Ms P. Low
Accused : Mr R. Tagivakatini
Sentence : 22 May2015

SENTENCE

1. The AccusedRafaeleNakidiQativi was charge for the offence of Act Intended to Cause Grevious Harm contraryto section 255 (a) of the Crimes Decree No. 44 of 2009.
   
2. The particulars of offence is that the Accused on the 18th day of October 2014, at Wailevu Village, Tunuloa, Cakaudrove, in the Northern Division, with intent to do grevious harm to RuciCaucau unlawfully wounded the saidRuciCaucau with a stick.
   
3. The charge was read to the Accused on 16 December 2014, in the itaukei language where the Accused pleaded guilty to the charge. I find the plea to be unequivocal. The Court on the same date issue an interim Domestic Violence Restraining Orderagainst the Accused with the Standard Non Molestation condition for the protection of the victim who is the wife of the Accused.
   
4. The summary of facts was read to the Accused on 18 February 2015, where the Accused admitted to the facts and was convicted as charged.
   
5. The facts of the case is that,on Friday 17 October 2014, when the Accused was not at home the Complainant and her children went to Wailevu Village where she left her children with their grandparents while she attend a school fund raise (dance) at the Wailevu Primary School hall. At around 1am on 18 October 2014, the Complainant saw the Accused outside the hall andshe call the Accused into the hall. Accused call the Complainant outside the hall and they went to check their children. On the way, the Accused was threatening and swearing at the Complainant. Upon reaching the home where their children were, the Complainant went back to the hall and the Accused followed her. The Complainant hid in the culvert and went to sleep in another house. At around 2am, the Complainant heard the Accused calling her name and she told Fane not to inform the Accused that she is with her.At around 9am to 10am on 18 October 2014,the Complainant saw the Accused looking for her with a green piece of tree branch and she ran to the house of ElisabetaVasumu. The Accused went into the house of Elisabeta and strike the Complainant's back several times with the green tree branch until the tree branch broken. The Accused punched the victim's head and face several times and also kicked heruntil the Complainant felt numb and unconscious. All these happened in front of theirson.
   
6. The Defence Counsel had filed plea in mitigation submission and the Prosecutor had also filed her sentencing submission.
   
7. The maximum penalty prescribed by the Crimes Procedure Decree No. 44 of 2009, for the offence of Act with Intend to Cause Grevious Harm is life imprisonment.
   
8. The tariff for this offence was discussed in various cases where 6 months to 5 years imprisonment as set in State vMokubula[2003] FJHC 164, appears to be the accepted tariff for offence of Actwith Intend to Cause Grievous Harm.
   
9. Wounding another person with a weapon as discussedin State v Dinesh Chand, Criminal App No. AAU 007 of 20005, should almost, always be visited with the immediate imprisonment sentence to deter the offender and the others. In the case of State vMokubula (supra) in a case of an attack by weapon, the starting point should range from 2 years imprisonment to 5 years depending on the weapon used.
   
10. In considering the facts of this case, I take 2 years as the starting point. I add 1 year making a total of 3 years for the following aggravating factors;
    

(i) The use of a green tree branch as a weapon;

(ii) Punched her head and face and kicked her until she felt numb and unconscious in front of your son; and

(iii) No regards to your wife on the injuries sustained.

11. I reduce the sentence by 1 year to reflect the Accused early guilty plea, making a total of 2 years imprisonment.

12 I again reduce 1 year for the following mitigation factors:

(i) Married with 5 children;

(ii) Sole bread winner;

(iii) Reconciled with the victim (wife) and now living together;

(iv) Family suffered during period of incarceration of 2 months 3 weeks;

(v) First Offender;

(vi) Very remorseful and ask for the Court forgiveness; and

(vii) Full cooperation with the police.

13. I further reduce 2 months 3 weeks for the period in which the Accused was remanded, making a total of 9 month and 1 week imprisonment.

14. Your final sentence is 9 months and 1 week imprisonment which are to be served with immediate effect. This should deter other members of the public who intend to commit this offence.

15. Since the victim in this case is your wife, I now make the Interim Domestic Violence Restraining Order permanent with the same conditions of Standard Non Molestation under Section 27 ofthe DomesticViolence Decree 2009 for the protection of your wife.

16. 28 days to appeal.

...............................................
Mr Cama M. Tuberi
RESIDENT MAGISTRATE