State v Ali - Sentence [2017] FJMC 134; Criminal Case 659.2016 (9 November 2017)

IN THE RESIDENT MAGISTRATE’S COURT
AT NADI WESTERN DIVISION
CRIMINAL JURISDICTION

Criminal Case No: 659 of 2016

BETWEEN : THE STATE

AND : MUDDASSIR ALI

Before : SIROMI DOKONIVALU TURAGA ESQ
RESIDENT MAGISTRATE

Date of Sentence: 9^th day of November, 2017

WPC Sharmila for the Prosecution
Accused in person

SENTENCE

1. Muddarssir Ali you have pleaded guilty on your own freewill for the offence of Assault Causing Actual Bodily Harm contrary to Section 275 of Crimes Act number 44 of 2009.
   
2. Summary of facts noted that on 17/07/16 AT 1.30pm at Naboutini, Sabeto one; Muddarssir Ali (Accused) 39 yreas, Taxi driver of Naboutini, Sabeto assaulted one Rihaz Ali (Complainant) 63 years, unemployed of Naboutini, Sabeto. The complainant is the father of the accused and lived on the same house with his wife Ainul Nisha (PW-2). On the above date and time the complainant was at home with the accused and his wife when the accused and (PW-2) decided to visit a relative. The complainant then told the accused to repair their car on his way back. The accused then talked back to the complainant and said that he is doing nothing. The complainant went to the accused who was sitting on the drivers’ seat. The accused then opened the door and pushed the complainant which caused him to fall to the ground. The accused then kicked his shoulder, left leg, buttocks and head. The matter was reported and the complainant was medically examined revealing the injuries namely scalp slightly swollen as per medical report dated 17/07/2016. The accused was arrested and interviewed under caution. He admitted the allegation put to him (Refer to Q & A 14 – 15 and was formally charged for Assault Causing Actual Bodily Harm.
   
3. You admitted to the summary of facts hence I convict you as charged.
   
4. The maximum sentence for offence under section 275 of the Crimes Act is 5 years imprisonment.
   
5. In mitigation you said the following :-
   • 40 years old;
   • Married – separated;
   • Driver – earns $150 per week;
   • Seek court forgiveness;
   • Remorseful of his action; and
   • Seek lenient sentence.
     
6. The tariff for assault occasion bodily harm varies from suspended sentence to 9 months imprisonment (per Gounder, J in Jonetani Sereka .v. State 2008 HAA 027 of 2008, 25 April 2008).
   
7. In State vs Anjula Devi Criminal Case No. 4 of 1998 Lab, it was held that the tariff for "Assault Causing 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.
   
8. In Elizabeth Joseph vs State" Criminal Appeal HAA 030 of 2004S, the accused stabbed her partner's wife with a pen knife. The victim received a cut on the finger. A sentence of 4 months imprisonment was upheld on Appeal.
   
9. In the case of State vs Tevita Alafi 2004 HAA 073/04S, it was held that it is the extent of the injury which determines the sentence.
   
10. In the case of Amasai Korovata vs The State F20061 HAA 115/06S it is in domestic violence cases, sentences of 18 months imprisonment have been upheld.
    
11. I have also considered Justice Goundars review on Sanjeev .v. State Criminal Appeal HAA 005 of 2011( delivered on 13^th March, 2014) Raisosoni .v. State [ 2011] FJHC 32 HAA 004 of 2011 ( 7 February, 2011), both cases of domestic violence wherein his Lordships stated that 6 months imprisonment is fair and reasonable as starting point.
    
12. In Navuniani Koroi v. The State" Criminal Appeal No. AAU0037 of 2002S the court said:

"It has been the practice of the courts to reduce a sentence where the accused person has pleaded guilty. In most cases that is a recognition of his contribution as expressed by an early admission and the fact that it will save the witnesses and the court a great deal of time and expense”.

13. I have considered Sections 4[1] and 4[2] of the Sentencing and Penalties Act 2009.

14. Relevantly, Section 4(3) Sentencing and Penalties Act provides:

“In sentencin0; offenders for afor an offence involving domestic violence, a court must also have regard to —

(a) pecial considerations relating to the physical, psychological or other characteristics of a of a victim of the offence, including —

(i) the age of the victim;

(ii) whether the victim was pregnant; and

(iii) whether the victim suffered any disability;

(b) whether a child or children were present when the offence was committed, or were otherwise affected by it;

(c) the effect of the violence on the emotional, psychological and physical well being of a victim;

(d) the effect of the offence in terms of hardship, dislocation or other difficulties experienced by a victim;

(e) the conduct of the offender towards the victim since the offence, and any matter which indicates whether the offender —

(i) accepts responsibility for the offence and its consequences;

(ii) has taken steps to make amends to a victim, including action to minimise or address the negative impacts of the offence on a victim;

(iii) may pose any further threat to a victim;

(f) evidence revealing the offender’s —

(i) attitude to the offence;

(ii) intention to address the offending behaviour; and

(iii) likelihood of continuing to pose a threat to a victim; and

(g) whether the offender has sought and received counselling or other assistance to address the offending behaviour, or is willing to undertake such counselling or seek such assistance.

15. Section 15(3) of the same Act states that:

“As a general principle of sentencing, a court mayimpo impose a more serious sentence unless it is satisfied that a lesser or alternative sentence will not meet the objectives of sentencing stated ition 4, antences oces of imprisonment should be regarded ased as the sanction of last resort taking into account all matters stated is Par21;.

16. In Navuniani Koroi v. The State" Criminal Appeal No. AAU0037 of 2002S the court said:

"It has been the practice of the courts to reduce a sentence where the accused person has pleaded guilty. In most cases that is a recognition of his contribution as expressed by an early admission and the fact that it will save the witnesses and the court a great deal of time and expense”.

17. I impose 6 months as starting point.
    
18. This was a case of act of domestic violence, assault against your own father, considering the age gap and the nature of injuries, I will add 1 year. Interim sentence is increased to 18 months imprisonment.
    
19. I deduct 1/3 for your early plea, sentence reduced to 1 year.
    
19. Considering your mitigation, I reduce 5 months.
    
20. Your sentence is 7 months imprisonment.
    
21. Under Section 26 (2) (B) of Sentencing and Penalties Act, a sentence below two (02) years could be suspended. The key question for this court is whether your sentence should be suspended or not.
    
22. The Domestic Violence Act is aimed to provide legal protection parents, the elderly, women and family members in our Fijian society. The intention of the new law is to make the home environment free from violence and exploitation and manipulation. The was made against the background of a regretted state of affairs in our country where violence was becoming more frequent at homes than before and court must step in to address the friction and change those society attitudes.
    

23. A basic value that is closely guarded against in society is respect for parents. Chinese Proverbs goes that “Respect for parents is the highest of civil life” and another reminder is that “ Parents are our living Gods” and another says “ Parents may not be perfect people but they are the most precious thing that God has given you.

24. You must learn to respect your father, and your mother and your family members and they are the closest people you may trust in difficult times in the days ahead of you. You are 40 years of age, first offender and admitted to your mistake.
    
25. In this case, the level of violence against 63 years old man was high where you opened the car, pushed your father outside and he fell to the ground and you kicked him as he lay on the ground.
    
26. A short and sharp sentence is appropriate.
    
27. I order that you serve 1 month imprisonment and balance of 6 months to be suspended for 3 years.
    
28. The purpose of sentence is deterrence to teach our society to care and respect the elderly and desist from form of voidance at home and respect the law at all times.
    
29. By your admission of guilty to the offence, a final DVRO for non –molestations was issued to you on 18/07/16 pursuant to Section 24 (a) (b) (i) of the Domestic Violence Act. Take notice that you are to strictly comply with the FINAL DVRO for the protection of complainant – Rihaz Ali. Failure of which you will be charged for breach of DVRO and the sentence is 12 months imprisonment and fine of $1,000. Failure of which you will be charged for breach of DVRO and the sentence is 12 months imprisonment and fine of $1,000.
    
30. The DVRO may be discharged by the protected person at any time upon protected person filing Form 25 in court. After hearing the applicant, the court will have to make its own assessment, if the non – molestation orders are to be discharged due to substantial change in the circumstances.
    
31. 28 days right of appeal.
    

DATED at Nadi on 9^th day of November, 2017
.........................................
Siromi Dokonivalu Turaga
Resident Magistrate