State v Waqanivutia [2017] FJMC 133; Criminal Case 137.2017 (6 November 2017)

IN THE MAGISTRATES’ COURT OF FIJI

AT NAUSORI

Criminal Case No: - 137/2017

STATE

V

JOVESA WAQANIVUTIA

For the Prosecution : - WPC Tatila

The Accused : - In person

Date of Sentence: - 06^th of November 2017

SENTENCE

1. JOVESA WAQANIVUTIA, you were charged with one count of Criminal Intimidation contrary to section 375(1) (2) (a) of the Crimes Act No 44 of 2009(“Crimes Act”).
2. Under the Crimes Act this indictable offence (which is triable summarily) and you elected this court.
3. You also admitted that on 17/09/2017 when your wife came to pick some money for shopping you chased her away. Later you came to her and threatened her by saying that you will kill her by chopping her to pieces, packed her and send the body pieces to her mother. You further said you were not afraid to police and if she complained you would do something to her before you go to jail.
4. I am satisfied that your plea was made voluntarily and unequivocal. Accordingly I convict you for this charge.
5. Maximum penalty criminal Intimidation under the Crimes Act is 05 years imprisonment.
6. In State V Baleinabodou[2012]FJHC 981 his Lordship Justice Temo said that the accepted tariff would be from 12 months to 04 years for the Criminal Intimidation.
7. In Laisiasa Koroivuki v the State ( Criminal Appeal AAU 0018 of 2010) the Court of Appeal discussed the guiding principles for determining the starting point in sentencing and observed :

"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 time. 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".

8. Considering the above judicial precedents and based on an objective seriousness, I select 14 months as the starting point for this sentence.
9. The aggravating factors are this was a domestic violence and abuse of trust and power and for these I add 07 months to reach 21 months imprisonment.
10. The mitigating factors are you are 35 years old, seeking forgiveness and remorseful. For these I deduct 03 months to reach 18 months imprisonment.
11. You are not a first offender and not entitle for discounts for your past good behavior.
12. In your mitigation you submitted that you have reconciled with your wife and she also confirmed that in the court.
13. In Patel v State [2011] FJHC 669; HAA030.2011 (27 October 2011), Justice Madigan held:

“This is a domestic violence offence and as such it cannot be reconciled. (Part III Section 3 (b) of Domestic Violence Decree). The appellant’s ground that the Magistrate did not allow for credit for reconciliation cannot be made out. The victim in this case cannot reconcile with the appellant in order to mitigate this offence. Nor should the Magistrate have allowed it to be a factor in his mitigation “list”. Reconciliation plays no part in a domestic violence offence either for or against an accused.”

14. Further in State v Kumar [2011] FJHC 341; HAA 020.2010 (9 June 2011), Justice Madigan held:

“A domestic violence offence which this obviously is cannot be reconciled and in any event the Court record notes that the victim did not want to reconcile. It is incumbent upon the tribunal or officer of the Court to have regard to the Domestic Violence Decree which came into force on the 1st of December 2009.The Decree was enacted to protect persons, men women and children, from abuse in domestic environment and if the Courts do not make findings and ruling within the spirit of the Decree, then that altruistic arm is thwarted.”

15. In this case when I asked, your wife confirmed that you are the sole bread winner of the family and she is also pregnant. Hence I am not satisfied about this reconciliation as genuine and would disregard that.
16. You pleaded guilty early and for that I deduct 1/3 to reach 12 months imprisonment.
17. Now I have to consider about suspending your sentence pursuant to section 26(2) (b) of the Sentencing and Penalties Act.
18. In Muskan Balaggan Criminal Appeal No. HAA 031 of 20131 the Court held that:

“neither under the common law, nor under the Sentencing and Penalties Decree, there is an automatic entitlement to a suspended sentence. Whether an offender’s sentence should be suspended will depend on a number of factors. These factors no doubt will overlap with some of the factors that mitigate the offence.”

19. You have committed this offence whilst you are on suspended sentence. The purpose of giving a suspended sentence is to allow you the chance to rehabilitate. But not only you have reoffended but committed a serious offence during the operational period of your suspended sentence. You threatened to kill your wife by chopping her to pieces and send body parts to her mother. You did not consider that your wife is pregnant and carrying your baby in her womb when you made these remarks. Hence in my view a custodial sentence is warranted in this case to denounce your behavior.
20. Accordingly I sentenced you to 12 months imprisonment for this charge.
21. For the safety of the victim I also grant a permanent domestic violence order with standard non-molestation conditions.
22. 28 days to appeal
    

Shageeth Somaratne

Resident Magistrate