State v Waqasaqa [2016] FJMC 125; Criminal Case 1264.2016 (30 August 2016)

IN THE MAGISTRATES’ COURT OF FIJI
AT SUVA

Criminal Case No: - 1264/2016

STATE

V

CLEWET WAQASAQA

For the Prosecution: WPC Kalara

For the Accused: Mr.Vuki(LAC)

Date of Sentence : 30^th of August 2016

SENTENCE

1. CLEWET WAQASAQA, you were charged with one count of Assault Occasioning Actual Bodily Harm contrary to section 275 of the Crimes Decree No 44 of 2009.
2. You pleaded guilty for this charge and admitted on 23/07/2016 after an argument with your wife about outing you assaulted her several times causing injuries as per medical report.
3. The learned defence counsel from the Legal Aid in his mitigation is asking for a non-conviction based on your employment and your future pursuant to section 16 of the Sentencing and Penalties Decree.
4. You are an executive officer of ILTB and the contention of the counsel is a conviction would affect your job and future employment.
5. It has been held that non-conviction would be given only for morally blameless people or technical breaches (State v Nayacalagilagi (2009) FJHC 73; HAC165.2007 (17th March 2009), Guidelines by his Lordship Chief Justice Gates in State v Batiratu [2012] FJHC 864; HAR001.2012 (13 February 2012). You do not fall in to any of these categories
6. . Further the article 26 of the 2013 Constitution states that every person is equal before the law. Therefore there should not be special treatment for you when charged with a domestic violence offence that would not be applicable to ordinary person.
7. Accordingly I convict you for this offence.

The Law and the Tariff

8. The maximum penalty for Assault Occasioning Actual Bodily Harm is 05 years imprisonment.
9. 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.”

10. 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."

11. 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.
12. Considering the gravity of offending, I select 06 months as the starting point for your sentence.
    

Aggravating Factors

13. 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 .
14. 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.
15. In this case I find abuse of trust and using a broom stick as aggravating factors and add 03 months to reach 09 months imprisonment.

Mitigating Factors

16. In UK Guidelines the positive good character and provocation are considered as mitigating factors.
17. I consider your past good behavior and personal mitigating factors (married with a child, co-operated with the police and remorseful) as mitigating this offence and deduct 03 months to reach 06 months imprisonment.

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. Having obtained the proper legal advice you pleaded guilty and for that I deduct 1/3 to reach 04 months imprisonment.
21. Now I have to consider whether to suspend this sentence. Even though I do not condone the domestic violence offences considering your past good behavior, early guilty plea and other personal mitigating factors I believe you deserve a chance to rehabilitate.
22. Hence I suspend this 04 months imprisonment to 02 years.
23. If you commit any offence during next 02 years you can be charged under section 28 of the Sentencing and Penalties Decree.
24. For the safety of the complainant I also grant a permanent domestic violence restraining order with standard non-molestation conditions.
25. 28 days to appeal.
    

Shageeth Somaratne

Resident Magistrate