State v Naburelevu [2016] FJMC 117; Criminal Case 1260.2016 (15 August 2016)

IN THE MAGISTRATES’ COURT OF FIJI
AT SUVA

Criminal Case No: - 1260/2016

STATE

V

VARINAVA NABURELEVU

For the Prosecution: WPC Fisher

The Accused: In person

Date of Sentence : 15^th August 2016

SENTENCE

1. VARINAVA NABURELEVU, you were charged with one count of Assault Occasioning Actual Bodily Harm contrary to section 275 of the Crimes Decree and one count of Criminal Intimidation contrary to section 375(1) (a) (IV) of the Crimes Decree. You pleaded guilty for this charge this morning.
2. According to admitted summary of facts, the victim is your wife who was 04 months pregnant at that time. On 29/07/2016 you came home and had an argument with your wife. You then punched her 3 times on her head and shoulder causing injuries as per medical report. You then warned her not to come back to the house otherwise you would kill her with a knife.
3. I am satisfied that your plea was voluntarily and unequivocal. Accordingly I convict you for these offences.
4. The maximum penalty for Criminal Intimidation is 10 years imprisonment.
5. In State V Baleinabodou[2012]FJHC 981 his Lordship Justice Temo said that an accepted tariff would be from 12 months to 04 years for this offence.
   
6. The maximum penalty for Assault Occasioning Actual Bodily Harm is 05 years imprisonment.
7. In State v Tugalala [2008] FJHC 78; HAC025S.2008S (29 April 2008) her Ladyship justice Shameem said :

“The tariff for this offence appears to range from an absolute or conditional discharge to 12 months imprisonment.”

8. 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.
9. In Laisiasa Koroivuki v the State ( Criminal Appeal AAU 0018 of 2010)the Fiji Court of Appeal discussed the guiding principles for determining the starting point in sentencing and observed :

"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 time. 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".

10. Considering the gravity of offending and your culpability, I select 12 months as the starting point for Criminal Intimidation which is the base sentence.
11. 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 .
12. 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.
13. Section 4(3) of the Sentencing and Penalties Decree has to consider also by a sentencing court in a domestic violence offence.
14. In this case I consider the following as aggravating factors :
    1. Abuse of trust and abuse of power;
    2. The victim was 04 months pregnant at that time ;
    100. This is a domestic violence offence.
15. For these aggravating factors I add 10 months to reach 22 months imprisonment.
16. In UK Sentencing Guidelines the positive good character and provocation are considered as mitigating factors.
17. In this case the you submitted following as mitigating factors:
    1. 38 years old ;
    2. Promise not to re-offend;
    100. In remand for nearly 15 days;
    4. First offender.
18. For these mitigating factors I deduct 04 months to reach 18 months imprisonment.
19. You have also submitted a statuary declaration by your wife where she informed that she has reconciled and wants the DVRO order withdrawn.
20. In domestic violence offences the court has to be caution in considering these supposed reconciliations because normally the victim is not in a position to genuinely reconcile. And in this case considering that you are the sole bread winner of the family I find this is also not genuine reconciliation and do not give weight to it.
21. 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”.

22. 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.
23. You pleaded guilty on the first available opportunity and for that following the above guidelines; I deduct 1/3 to reach 12 months imprisonment.
24. Considering all the circumstances, I sentence you to 08 months imprisonment for the Assault causing actual bodily harm and as this was committed in same transaction made this concurrent to the Criminal Intimidation.
25. Now I have to consider whether to suspend this sentence. You assaulted your 04 months pregnant wife and also threatened to kill her with a knife. You put her and your unborn child in danger by your behavior. Your behavior needs to be denounced and message need to be given to the society the violence against the women is not tolerated in this Country by the court.
26. Even though I have no sympathy for you I am also mindful about the hardship your family would face through a full custodial sentence. Hence a partly custodial sentence is justifiable in this case.
27. VARINAVA NABURELEVU, this Court sentenced you to 12 months imprisonment the offence of Criminal Intimidation and 08 months imprisonment for the offence of Assault Causing Actual Bodily Harm to be served concurrently. From that you have to serve 06 months in correction center and balance 06 months will be suspended for 03 years.
28. For the safety of the complainant, I also grant a permanent domestic violence restraining order with standard non-molestation conditions.
29. 28 days to appeal.
    

Shageeth Somaratne

Resident Magistrate