State v Covert [2016] FJMC 34; Criminal Case 20.2016 (16 March 2016)

IN THE MAGISTRATES' COURT OF FIJI
AT TAVEUNI

Criminal Case No: - 20/2016

STATE

V

PHILIP JARDINE COVERT

For the Prosecution: WPC Lani
For the Accused: Mr.Inia Rakaria(LAC)
Date of Sentence : 16th of March 2016

SENTENCE

1. PHILIP JARDINE COVERT, 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 04/02/2016 after an argument you assaulted your wife causing her injuries.
   
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 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. 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 this court select 06 months as the starting point for this offence.
   

Aggravating Factors

8. 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 .
      
9. 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.
   
10. In this case I find the breach of trust as aggravating this offence and add 06 months to reach 12 months imprisonment.
    

Mitigating Factors

11. In UK Guidelines the positive good character and provocation are considered as mitigating factors. In this case there seems to be some provocation from the complainant. For this and your past good behavior I deduct 03 months to reach 09 months imprisonment.
    

Reconciliation

12. When an accused inform a court that he has reconciled in a domestic violence offence a court has to be careful about that. In this case the complainant also confirmed that she has reconciled in the Court. Further she informed that the accused is earning and she is doing domestic work only. Therefore I do not think this reconciliation is genuine and disregard that.
    

Guilty Plea

13. 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".

14. 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.
    
15. For pleading guilty at the first available opportunity I deduct 1/3 to reach 06 months imprisonment. Final issue to decide is whether to suspend this sentence.
    
16. And having considered your old age (71 years old) and past good behavior I believe you need a chance to reform.
    
17. PHILIP JARDINE COVERT, I sentence you to 06 months imprisonment for this offence and this will be suspended for 03 years. If you commit any offence during next 03 years you can be charged under section 28 of the Sentencing and Penalties Decree.
    
18. 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