State v Bollen [2016] FJMC 20; Criminal Case 30.2016 (19 February 2016)

IN THE MAGISTRATES' COURT OF FIJI
AT SUVA

Criminal Case No: - 30/2016

STATE

V

JACKSON BOLLEN

For the Prosecution: PC Josuha
For the Accused: Mr.Tuicolo(LAC)
Date of Sentence : 19th of February 2016

SENTENCE

1. JACKSON BOLLEN , you were charged in this Court to 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.
   
2. You pleaded guilty for this charge and also admitted the summary of facts. According to the facts on 03/01/2016 you came home drunk and had an argument about food with your de facto partner. Then you took a stick and hit, punched her face and head several times and dragged her on the ground. You also took a knife and threatened to slit her throat and even showed violent on youtube to her.
   
3. I am satisfied that you fully understood your plea and this was made on your own free will and therefore convict you for both counts.
   

The Law and the Tariff

4. The maximum penalty for Assault Occasioning Actual Bodily Harm is 05 years imprisonment.
   
5. In State vs Anjula Devi Criminal Case No. 4 of 1998 Lab, it was held that the tariff for "Assault Occasioning Actual Bodily Harm" ranges from a suspended sentence where there is a degree of provocation and no weapon used, to 9 months imprisonment or the more serious cases of assault.
   
6. Maximum penalty for criminal intimidation is 10 years imprisonment and in State V Baleinabodu [2012] FJHC 981 the court held that tariff would be from 12 months to 04 years 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. Considering the gravity of offending this court select 06 months as the starting point for the 1st count and 14 months for the second count.
   
9. As these are domestic violence offences I have taken in to consideration section 4(3) of the Sentencing and Penalties Decree also.
   

Aggravating Factors

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. In this case I find the breach of trust, using a stick for assault, using a kitchen knife to threaten and showing violent on youtube to further intimidate her as aggravating factors .For these I add 10 months to reach 16 months for the 1st count and 24 months for the second count.
    

Mitigating Factors

13. In UK Guidelines the positive good character and provocation are considered as mitigating factors. In this case even though in mitigation you have taken the provocation the summary of facts does not reveal that and therefore I do not consider that. But for your past good behavior I deduct 04 months to reach 12 months for the 1st count and 20 months for the 2nd count.
    
14. The counsel in his mitigation also informed that you have reconciled with the complainant and she has confirmed that in the court. Considering that she is employed as a gender officer I accept this as a genuine reconciliation and deduct 02 months to reach 10 months for the 1st count and 18 months for the 2nd count.
    
15. For pleading guilty at the first available opportunity I deduct 1/3 to reach 06 months for the 1st count and 12 months for the 2nd count and these are concurrent.
    
16. You assaulted the victim after inquiring about food and punched her face several times even using a stick. You even threatened to slit her throat with a knife and further intimidated her by showing violent video. Your behavior on that day needs to be denounced. Further your sentence need to reflect that domestic violence is not acceptable in a civilized society. Therefore I do not think a fully suspend sentence would serve these purposes. But considering your past good behavior as well as early guilty plea I believe there need to be some space for reform also.
    
17. JACKSON BOLLEN, I sentence you to 12 months imprisonment for this charge. From that you have to serve 06 months in correction center and balance 06 months will be suspended for 03 years. For the safety of the complainant I also grant a permanent domestic violence restraining order with standard non-molestation conditions.
    

8. 28 days to appeal
   

Shageeth Somaratne
Resident Magistrate