State v Tubuna [2016] FJMC 115; Criminal Case 873.2016 (11 August 2016)

IN THE MAGISTRATES’ COURT OF FIJI

AT SUVA

Criminal Case No: - 873/2016

STATE

V

JONE TUBUNA

Counsel : Ms.S.Tivavo for the State

Mr.P.Gade (LAC) for the Accused

Date of Sentence : 11^th of August 2016

SENTENCE

1. JONE TUBUNA, you were charged with one count of Act with Intend to cause Grievous Harm contrary to section 255(a) of the Crimes Decree No 44 of 2009.
2. You pleaded guilty for this charge on 19/07/2016 and also admitted the following summary of facts:

On the 15th May 2016 at about 6.00am at Nadonumai Settlement, Lami, Jason Ramateni (hereafter PW1), 15 years old, student was sleeping inside his room when his father JoneTubana (hereafter “the Accused”) 46 years old, Businessman woke PW1 up to drive their vehicle registration number DH050 to go and buy beer for him and his friends.

Upon the arrival at home the Accused was sleeping. PW1 went back inside his room and slept. PW1 was then woken up by the Accused questioning him why they were late. PW1 informed the Accused that his friends had told him to go to the shop at Toorak to buy beer however the shop was closed, so they drove back to Lami to buy the beer.

The Accused then started to hit PW1 with an electrical cord, the accused hit PW1 on is bottom and his left calf several times that caused him injuries.

PW1 left his residence and went to his Aunt JieniCakacaka (hereafter PW2), 29 years old, Hotel Receptionist of Lot 14 Balolo Street, Narere.

PW2 reported the matter at the Nasinu Police Station, whereby PW1 was examined at the Raiwaqa Health Centre on the 15th May 2016. The medical report states that the injuries sustained are; thigh – back u shaped laceration/abrasion, skin peeled off around 8cm long, tender and U shaped on (L) lateral leg 12cm long. Tender. The doctor’s professional opinion was that it was caused by high intensity beating.

The Accused was arrested and caution interviewed where the accused stated that he wacked his son because he took his car without permission. The accused was charge with 1 Count of ACT WITH INTENT TO CAUSE GRIEVIOUS HARM: contrary to Section 255 of the Crimes Decree Number 44 of 2009

3. I am satisfied that your plea was voluntarily and unequivocal. Accordingly I convict you for this charge.

The Law and the Tariff

4. The maximum penalty for Act with Intent to Cause Grievous Injuries under the Crimes Decree is life imprisonment.
5. In State v Drelinavai [2014] FJHC 309 his Lordship Justice Madigan said :

“The maximum penalty for this offence is life imprisonment. Various cases, but in particular MabaMokubula HAA0052of 2003, have held that the tariff for the offence must be from 2 years to 5 years imprisonment, and more in a domestic violence context.

In the Mokubula case, Shameem J. analysed several cases from the High Court and the Court of Appeal and concluded that in an attack by a weapon, the starting point should range between 2 years and 5 years, depending on the weapon used. She added that a suspended sentence in not appropriate.

Although Shameem J. was considering an appeal of sentence for the identical offence under the Penal Code, the new offence under the Crimes Decree has the same maximum penalty and this Court does now confirm that the tariff is a term of immediate imprisonment from 2 to 5 years, and the nature and danger of the weapon used along with the injuries inflicted will be the determinants of where in that range the starting point is taken.”

6. As for the starting point the UK Sentencing Guidelines states that offences committed in domestic context should be regarded as being no less serious than offences committed in a non-domestic context. Therefore the starting point should be same irrespective of whether the parties are known to each other.
7. In Koroivuki v. State [2013] FJCA 15; AAU 0018.2010 (5 March 2013) his Lordship Justice Suresh Chandra said:

"In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this stage. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff. If the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range."

8. Considering the gravity of offending and your culpability I select 02 years as the starting point for this sentence.

Aggravating Factors

9. In UK Guidelines following are considered as aggravating factors in domestic violence cases :
   1. Abuse of trust and abuse of power ;
   2. Victim is particularly vulnerable ;
   100. Impact on children;
   4. Using contact arrangements with a child to instigate an offence ;
   5. A proven history of violence or threats by the offender in a domestic setting;
   6. history of disobedience to court orders;
   7. Victim forced to leave home .
10. When sentencing for a domestic violence a court in Fiji can consider the above aggravating factors and any other factors that would further aggravate the offence.
11. Section 4(3) of the Sentencing and Penalties Decree has to consideralso by a sentencing court in a domestic violence offence.
12. I consider the following as aggravating factors in this case :
    1. The victim is your son and by committing this offence you breached the trust placed on you by him ;
    2. You used an electrical cord to assault him several times ;
    100. The victim had to leave the home and go to his aunt home because of your beating.
13. For these aggravating factors I add 02 years to reach 04 years imprisonment.

Mitigating Factors

14. The learned counsel from the legal aid filed a written mitigating submission and from that I consider the following :
    1. Married with 7 children ;
    2. Sole bread winner of the family ;
    100. Remorseful.
15. For these mitigating factors I deduct 01 year to reach 03 years imprisonment.
16. Even though you informed this Court that you have reconciled with your son, this offence is not reconcilable and also there is no evidence before me to confirm that also. Therefore I do not give weight to that.
17. Further you have previous convictions and therefore not entitle for discounts for your character.

Guilty Plea

18. In Naikelekevesi v The State Criminal Appeal No AAU 0061 of 2007 it was observed :

“...where there is a guilty plea, this should be discounted for separately from the mitigating factors in a case”.

19. In UK Guilty Plea guidelines of 2007 it has been held that when an accused pleaded guilty at the first available opportunity the reduction is 1/3 and after a trial date is set 1/4 recommended. But when an accused pleaded guilty at the door of the court or after the trial has started he maybe entitle for only 1/10 discount.
20. After getting proper legal advice you pleaded guilty at the first available opportunity and giving full credit for that I deduct 1/3 to reach 02 years imprisonment.
21. You were in remand for this case for nearly 01 month and pursuant to section 24 of the Sentencing and Penalties Decree I deduct that period from your sentence to reach 23 months imprisonment. Even though the final sentence is below the tariff for this offence, the reason for that were the early guilty plea and the remand period of the accused.
22. Now I have to consider whether to suspend your sentence as request by your counsel in his mitigation.
23. Without any justification you assaulted your son just because he got late bringing beer to you and your friends in the morning. You used an electrical cord for the assault causing serious injuries. Further it was shown that previously you assaulted your wife and was on a bound over for that. Reoffending during the bound over also shows that you are not prepared to rehabilitate and also your family members are not safe from your violence. Hence a custodial sentence is warranted to denounce your behavior and deter you from committing violence against your close family members in future.
24. But I also note that you are the sole bread winner of the family and one of your daughters is presently studying in USP and need your support to continue with her education. Even though I have no sympathy for you, I am also mindful that full custodial sentence would be detrimental to your family and your children with their education .Considering all these circumstances I believe partly suspended sentence would be justifiable in this case.
25. JONE TUBUNA, I sentence you to 23 months imprisonment for one count of Act with Intend to cause Grievous Harm contrary to section 255(b) of the Crimes Decree No 44 of 2009. From that you have to serve 13 months in correction center and balance 10 months will be suspended for 03 years.
26. For the safety of the victim I also grant a permanent domestic violence restraining order with standard non-molestation conditions.
27. Since this court is exercising the extended jurisdiction of the High Court case, the parties may appeal against this sentence within 30 days with leave to the Court of Appeal.
    

Shageeth Somaratne

Resident Magistrate