State v Pal [2016] FJMC 32; Criminal Case 17.2016 (15 March 2016)

IN THE MAGISTRATES' COURT OF FIJI
AT TAVEUNI

Criminal Case No: - 17/2016

STATE

V

RAVIND PAL

For the Prosecution: WPC Lani
The Accused: In person
Date of Sentence : 15th of March 2016

SENTENCE

1. RAVIND PAL , 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 this morning and also admitted the summary of facts. According to the facts on 19/02/2015 whilst the complainant was heading to Wainiyaku with her husband to pick some dried yaqona you stopped their vehicle and punched her face and left jaw. You also tore her top and swore at her. The complainant is your step mother.
   
3. I am satisfied that you fully understood your plea and this was made on your own free will and therefore convict you for this charge.
   

The Law and 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. 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.
   
7. Considering the gravity of offending I select 06 months as the starting point for this offence.
   

Aggravating Factors

8. In this case I find the relationship of parties, you tearing her dress and swearing at her as aggravating factors and add 06 months to reach 12 months imprisonment.
   

Mitigating Factors

9. In UK Guidelines the positive good character and provocation are considered as mitigating factors in domestic violence offences. In this case you have no previous convictions and for that I deduct 02 months to reach 10 months imprisonment.
   
10. For your personal mitigating factors ( 29 years old, married, seeks forgiveness) I further deduct 02 months to reach 08 months imprisonment.
    

Guilty Plea

11. 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".

12. In UK sentencing 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.
    
13. As you have pleaded guilty at the first available opportunity I deduct 1/3 to reach 06 months imprisonment.
    
14. Now I have to consider whether to suspend this sentence. You pleaded guilty at the earliest opportunity saving the Court time and resources. You have unblemished character. Therefore I believe you need an opportunity to reform.
    
15. RAVIND PAL, I sentence you to 06 months imprisonment for this offence and this will be suspended for 02 years. If you commit any offences during next 02 years you can be charged under section 28 of the Sentencing and Penalties Decree.
    
16. For the safety of the complainant I also grant a permanent domestic violence restraining order with standard non-molestation conditions.
    

2. 28 days to appeal
   

Shageeth Somaratne
Resident Magistrate