State v Pakoa [2016] FJMC 94; Criminal Case 984.2016 (22 July 2016)

IN THE MAGISTRATE’S COURT of Fiji

AT SUVA

Criminal Case No 984/16

STATE

-v-

JOHN DAVID PAKOA

SENTENCE

1] The following charge was read out to you and understanding the contents you pleaded guilty to the same on your own free will. Accordingly you are convicted to the following charge.

ASSAULT CAUSING ACTUAL BODILY HARM: Contrary to Section 275 of the Crimes Decree No. 44 of 2009.

Particulars of Offence

JOHN DAVID PAKOA on the 2nd day of June 2016 at Suva in the Central Division assaulted KereniTupou thereby occasioning her actual bodily harm.

2] Summary of facts that you have admitted revealed that on 2/6/2016 at about 11.00am at Orelly’s Night Club Macauthur Street, Suva you assaulted KereniTupou , your wife, and she received injuries on her face.

3] Maximum sentence for this offence is Imprisonment for 5 years.It was held inSereka v State [2008] FJHC 88; HAA027.2008 (25 April 2008) 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 for the more serious cases of assault referring to the judgement in State v Anjula Devi, Criminal Case No. 04 of 1998 Lab.

4] I shall now proceed to consider your sentence as to be consistent with the tariff, mitigating factors and aggravating factors.

5] I pick 2months’ imprisonment as the starting pointand increase 1months for the aggravating factor that the victim is your partner. The domestic violence should be seriously dealt with since violence within the family targets gender weakness of women and it also affects the children. Accordingly your sentence now reaches 3 months.

6] As you have pleaded guilty at the first available opportunity, your sentence should be reduced by a third in view of the judgment in VeretarikiVetaukula v The State , High Court Crim App Case No: HAA057/07 which followed the judgement in Hem Dutt v The State , FCA Crim App Case No: AAU 0066 of 2005. Accordingly your sentence becomes 2 months imprisonment.

7] The prosecution has reported that you have no previous convictions. Therefor at this point I draw my attention to the judgment in The State v. SereviSereki and KameliUlunikoro, Revision No. 7/90 No. 7/90 where both SereviSereki and KameliUlunikoro were sentenced to one year imprisonment for Shopbreaking and Larceny. Tuivaga C.J., in ordering their immediate release from prison said:

"Young first offenders should not be sent to prison, unless there are compelling reasons to do so."

Considering all these factors and specially your good character I decide to suspend your sentence for 2 years.

If you commit any offence punishable by prison sentence during the next 2 years you can be charged under section 28 of the Sentencing and Penalties Decree.

8] I also address your request to have a non-conviction. This court is of the view that offenders of domestic violence do not deserve at all for a non-conviction. The law on sentencing in circumstances where non conviction can be entered was outlined in State v Batiratu [2012] FJHC 864; HAR001.2012 (13 February 2012) as follows;

“There were very special circumstances existing in The State v Nand Kumar Cr. App. No. HAA014 of 2000L and in considering an appeal against an absolute discharge for the offence of common assault, I had occasion to say:

"The court, in its sentencing remarks, said rightly, it was faced with "a very awkward situation" for this accused was facing dismissal from his employment if a conviction were to be entered. Nevertheless, a discharge without conviction being entered, was not an appropriate sentence here. Absolute discharges are appropriate only in a limited number of circumstances, such as where no moral blame attaches (R v O'Toole (1971) 55 Cr App p 206) or where a mere technical breach of the law has occurred, perhaps by imprudence without dishonesty (R v Kavanagh (unreported) May 16th 1972 CA)"

SUMMARY OF THE SENTENCE

Two months imprisonment suspended for 2 years

28 days to appeal

PRIYANTHA LIYANAGE

RESIDENT MAGISTRATE, SUVA

22/7/2016