State v Kaloutagitagi [2016] FJMC 224; Criminal Case 19.2016 (8 November 2016)

IN THE MAGISTRATES’ COURT OF FIJI
AT SUVA

Criminal Case No: - 19/2016

STATE

V

AMEO KALOUTAGITAGI

For the Prosecution: Cpl Fisher

The Accused : In person

Date of Sentence : 08^thof November 2016

SENTENCE

1. AMEO KALOUTAGITAGI, 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 and admitted the summary of facts presented by the prosecution.
3. According to the facts this incident happened in Vadravadra village, Gau on 02/11/2016. After a grog session in the early morning you punched the face of your wife suspecting that she was having an extra marital affair. When she ran to the bed room, you followed her and keep assaulting her and even prevented your daughter get help even though the victim was bleeding.
4. In the morning when the victim was preparing breakfast for her children, you came from bed room and slapped her head. You also cut her hair in front of the children whilst she was defenceless and crying. The medical report conducted on 03/11/2016 shows multiple injuries to the victim.
5. I am satisfied that your plea was made voluntarily and unequivocal. Accordingly I convict you for this charge.
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) his Lordship Justice Goundar 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 objective seriousness of the offence, I select 05 months as the starting point for this case.
11. In UK Sentencing 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 be considered 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. This is a domestic violence offence;
    100. You keep assaulting her whole day;
    4. In front of your children you cut her hair whilst she was crying ;
    5. She has to leave the house.
15. For these aggravating factors, I add 12 months to reach 17 months imprisonment.
16. In UK Sentencing Guidelines the positive good character and provocation are considered as mitigating factors.
17. In this case you submitted following as mitigating factors:
    1. 38 years old ;
    2. Married with 4 children ;
    100. First offender ;
    4. Seeking forgiveness.
18. For these mitigating factors, I deduct 03 months to reach 14 months imprisonment.
19. Even though you informed this court that you have reconciled with the victim and she also confirmed that in the court considering that she is unemployed, I do not consider this as genuine reconciliation and disregard that.
20. You pleaded guilty at the earliest opportunity and for that I deduct 1/3 to reach 10 months imprisonment.
21. Now I have to consider whether to suspend your sentence. Victims of domestic violence often feel responsible for the violence. In this case also the victim with injuries in her face appeared before me accepted that she was responsible for this violence.
22. Further it is common to see the victims to bear the violence silently to keep the family life intact until the violence becomes unbearable leaving to tragic conclusions.
23. Hence I am of the view that the key to protection lies in deterring the violent conduct by sending an unequivocal message to would-be perpetrators of domestic violence that if they offend, they will be sentenced to a lengthy period of imprisonment so that they are no longer in a position to inflict harm.
24. AMEO KALOUTAGITAGI, I sentenced you to 10 months imprisonment for this charge.
25. For the safety victim, I also grant a permanent domestic violence restraining order with standard non-molestation conditions.
26. 28 days to appeal.

Shageeth Somaratne

Resident Magistrate