State v Mareko [2016] FJMC 43; Criminal Case 363.2016 (11 April 2016)

IN THE MAGISTRATES’ COURT OF FIJI
AT SUVA

Criminal Case No: - 363/2016

STATE

V

GEORGE ANTHONY MAREKO

For the Prosecution: PC Shaw
For the Accused: Ms.S.Daunivesi (LAC)
Date of Sentence : 11th of April 2016

SENTENCE

1. GEORGE ANTHONY MAREKO, you pleaded guilty to one count of Assault Occasioning Actual Bodily Harm contrary to section 275 of the Crimes Decree No.44 of 2009.
   
2. Admitted summary of facts shows that on 13/12/2015 at Temptation night club whilst the complainant was drinking with his friends you assaulted his right cheek.
   
3. I am satisfied about your plea and 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. 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."

7. Considering the gravity of offending I select 05 months as the starting point for this sentence.
   

Aggravating Factors

8. The aggravating factor is you were a bouncer and waiter at that club and assaulted a customer. For this I add 03 months to reach 08 months imprisonment.
   

Mitigating Factors

9. The learned defence counsel submitted following as mitigating factors:
   
   1. 42 years old;
   2. Married with children;
   100. Sole bread winner;
   4. First offender.
      
10. For these mitigating factors I deduct 02 months to reach 06 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. Having got the legal aid you admitted to this offence at the first available opportunity. You also admitted this offence in your caution interview. Therefore I deduct 1/3 to reach 04 months imprisonment.
    
14. Considering all the mitigating factors I believe you need a chance to reform. Therefore I suspend this 04 months to 01 year.
    
15. If you commit any offence during next 01 year you can be charged under section 28 of the Sentencing and Penalties Decree.
    
16. 28 days to appeal
    

Shageeth Somaratne
Resident Magistrate