State v Chand [2016] FJMC 120; Criminal Case 56.2016 (25 August 2016)

IN THE MAGISTRATES’ COURT OF FIJI
AT TAVEUNI

Criminal Case No: - 56/2016

STATE

V

RAVI CHAND

For the Prosecution: Sgt.Naidu

The Accused: In person

Date of Sentence: 25^th of August 2016

SENTENCE

1. RAVI CHAND, you were charged with one count of Assault Occasioning Actual Bodily Harm contrary to Section 275 of the Crimes Decree and one count of Breach of Domestic Violence Restraining Order contrary to Section 77(1) of the Domestic Violence Decree. You pleaded guilty for both counts this morning.
2. According to admitted summary of facts, the victim is your wife and on 27/06/2016 you came home and found her sleeping with the children. You started kicking and asking her to give a mattress to sleep and when she asked you to wait; you punched on her left side of the head. The medical report confirms injuries. There was a Domestic Violence Order issued against you by this court when you committed this offence.
3. I am satisfied that your plea was voluntarily and unequivocal. Accordingly I convict you for this charge.
4. The maximum penalty for Assault Occasioning Actual Bodily Harm is 05 years imprisonment.
5. 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.”

6. The maximum penalty for Breach of DVRO is $1000/12 months imprisonment.
   7. 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.
   8. Also in LaisiasaKoroivuki 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".

9. Considering the gravity of offendingprevalent nature of the offence, I select 05 months as the starting point for the Assault Causing Actual Bodily Harm which is the base sentence.
10. 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 .
11. 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.
12. Section 4(3) of the Sentencing and Penalties Decree has to consider also by a sentencing court in a domestic violence offence.
13. In this case I consider the following as aggravating factors :
    1. Abuse of trust and abuse of power;
    2. The children were present during the offending;
    100. This is a domestic violence offence.
14. For these aggravating factors I add 10 months to reach 15 months imprisonment.
15. In UK Sentencing Guidelines the positive good character and provocation are considered as mitigating factors.
16. In this case the you submitted following as mitigating factors:
    1. 37 years old ;
    2. Married with 2 children;
    100. Promise not to re-offend;
    4. First offender.
17. For these mitigating factors I deduct 05 months to reach 10 months imprisonment.
18. You have also informed that you have reconciled with your wife and she is present in the court to confirm that.
19. 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.
20. 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”.

21. 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.
22. You pleaded guilty on the first available opportunity and for that following the above guidelines; I deduct 1/3 to reach 06 months imprisonment. Considering all the circumstances I sentence you to 03 months imprisonment for the Breach of Domestic Violence Order and made this concurrent.
23. Now I have to consider whether to suspend this sentence. You were under the domestic violence order when you assaulted your wife. The purpose of granting the restraining order was to protect your wife from future violence. But this has not deterred you from assaulting her. Your behavior need to be denounced. Also a custodial sentence is warranted to deter people from committing violence against women in this country.
24. 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.
25. RAVI CHAND,this Court sentenced you to 06 months imprisonment the offence of Assault Causing Actual Bodily Harm and 03 months imprisonment for the Breach of to Domestic Violence Restraining Order to be served concurrently.
26. From that you have to serve 03 months in correction center and balance 03 months will be suspended for 03 years.
27. 28 days to appeal.
    

Shageeth Somaratne

Resident Magistrate