State v Vatuwaliwali - Sentence [2017] FJMC 100; Criminal Case 68.2017 (10 August 2017)

IN THE MAGISTRATES’ COURT OF FIJI
AT LEVUKA

Criminal Case No: -68/2017

STATE

V

LENATI VATUWALIWALI

For the Prosecution: Sgt.Rao

The accused: In person

Date of Sentence : 10^th of August 2017

SENTENCE

1. LENATI VATUWALIWALI , you were charged with one count of Assault Occasioning Actual Bodily Harm contrary to section 275 of the Crimes Act No 44 of 2009(“Crimes Act”).
2. You pleaded guilty for this charge yesterday and also admitted the summary of facts presented by the prosecution.
3. According to the summary of facts some disturbing facts were revealed. Your wife was inside her bed room with her 3 months old baby when she heard you were shouting angry in the sitting room. You were angry because she has not cooked anything. Your wife got afraid and laid with her face downward. You came to the room and stepped 3 times on her head whereby blood came out from her nose. After that you ran away from the place.
4. Even though you were charged with Assault causing actual bodily harm the medical report of the victim does not show any injuries.
5. In this situation I act under section 160(2) of the Criminal Procedure Act which provides :

“When a person is charged with an offence and facts are proved which reduce it to a minor offence , the person may be convicted of the minor offence although he or she was not charged with it.”

6. Based on the admitted facts I convict you for one count of Common Assault contrary to section 274 of the Crimes Act.
7. The maximum penalty for Common Assault under the Crimes Act is 01 year imprisonment. There is no fixed tariff for this offence
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. Considering the objective seriousness, I select 04 months as the starting point for your sentence.
10. 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 .
11. 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.
12. Further the court must consider the section 4(3) of the Sentencing and Penalties Act also in domestic violence offences.
13. In this case I find the breach of trust; a child was present at the scene and the place of assault (head) as aggravating this offence and enhances your sentence by 06 months to reach 10 months imprisonment.
14. In UK Guidelines the positive good character and provocation are considered as mitigating factors.
15. In mitigation you submitted the following :
    1. 35 years old;
    2. Married with 3 children;
    100. Farmer.
    4. First offender.
16. For the above mitigating factors, I deduct 04 months to reach 06 months imprisonment.
17. In UK Guilty Plea 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.
18. You pleaded guilty at the earliest opportunity and for that I deduct 1/3 to reach 04 months imprisonment.
19. Now I have to consider whether to suspend this sentence pursuant to section 26(2) (b) of the Sentencing and Penalties Act.
20. As I said earlier some disturbing facts were shown during the summary of facts. When you found the victim has not cooked, you trampled on the head of the victim 3 times whilst your 3 months old child was next to her. She was lucky she did not receive any serious injuries. But these facts are sufficient in my mind to give you a custodial sentence to denounce your behavior and deter domestic violence from happening in this Island.
21. LENATI VATUWALIWALI, you are sentenced to 04months imprisonment.
22. For the safety of the victim, I also grant a permanent domestic violence restraining order with standard non-molestation conditions.
23. 28 days to appeal.
    

Shageeth Somaratne

Resident Magistrate