State v Narayan - Sentence [2017] FJMC 137; Criminal Case 585.2017 (7 November 2017)

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

Criminal Case No: 585 of 2017

BETWEEN : THE STATE

AND : DINESH NARAYAN

Before : SIROMI DOKONIVALU TURAGA ESQ
RESIDENT MAGISTRATE

Date of Sentence: 7^th day of November, 2017

WPC Sharmilla for the Prosecution
Accused in person

SENTENCE

1. Dinesh Narayan you have pleaded guilty on your own guilty plea for the offence of two counts Assault Causing Actual Bodily Harm contrary to Section 275 of Crimes Act No. 44 of 2009.
   
2. Summary of facts noted that on the 29^th day of April, 2017 at about 10.00am at Natalau, Sabeto one Dinesh Narayan (Accused) aged 34 years, Truck Driver of Natalau, Sabeto, hit one Michelle Pauline Smith (complainant) aged 12 years, Student of 1 Yaka Place Banaras, Lautoka with a stick causing injuries to her.
   

Victim is accused’s stepdaughter. On the above mentioned date, time and place, the victim was at home. Victim asked her mother if she could go for a swim and her mother allowed her. Before victim went for swim, accused had told her to push her 2 year old step sister in the baby stroller. Victim after pushing the baby stroller for 2 hours, got tired and sat down. Accused swore at the victim sitting when he saw her seated and got a stick and hit victim twice on her leg. Soon thereafter, victim’s father came and took her away and reported the matter to police. Victim was medically examined revealing the injuries as stated in the medical report namely small bruisers on the left side of the cheek, and right shin and swelling on the left leg and shin. The accused was arrested and interviewed under caution and he admitted hitting victim on her leg as answers to Q 24 to Q 28. Later accused was charged for the offence of Assault Causing Actual Bodily Harm and appearing in custody.

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 :-
   • 35 years old;
   • Married with 2 children;
   • Driver - $150 per week;
   • Seek court forgiveness;
   • Remorseful;
   • Early plea and save courts time;
   • Seeking lenient sentence;
   • First offender;
   • Sole breadwinner;
   • Seek non-custodial – to allow him to rehabilitate; and
   • Promise not to reoffend in future.
     
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. 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.
   
10. In Sanjeev .v. State Criminal Appeal HAA 005 of 2011( delivered on 13^th March, 2014), Gounder, J in reviewing the appeal of 2 years imprisonment for assault causing actual bodily harm in a domestic situation, said that on objective assessment, the starting point should be 6 months. Gounder, J stated that the 2 years starting point given by the Magistrate was on a higher scale and no explanation was offered. On appeal, considering the facts and the law, the sentence of 2 years was reduced to 6 months imprisonment. Sanjeev (supra) is a case of domestic dispute where the husband assaulted the wife and later picked up an iron rod and struck the leg of the victim.
    
11. In considering the appeal in Sanjeev ( supra) , Gounder, J noted the 6 months sentence given on appeal in Raisosoni .v. State [ 2011] FJHC 32 HAA 004 of 2011 ( 7 February, 2011). This was a case of domestic violence between father and children where both children were belted causing them slight swelling.
    
11. I have considered Section 4[1], 4[2] and 15[3] of the Sentencing and Penalties Act 2009 for the purpose of your sentence.
    
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 select 6 months imprisonment as my "starting point".
    
14. The aggravating factors are the assaulting a minor, domestic violence offence and abuse of authority by a father and violence in the presence of family members. Considering that, I add 1 year; your interim sentence is 18 months imprisonment.
    
15. Considering your early guilty plea, I deduct 5 months; your interim sentence is reduced to 1 year.
    
16. For other mitigating factors, I further deduct 4 months.
    
17. Therefore, your total sentence is 8 months imprisonment.
    
18. 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.
    
19. In 1993, Fiji ratified the Convention on the Rights of the Child tasked to ensure that:

“States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child”.

20. The rights of children are enshrined in the 2013 Constitution. Relevantly, section 41 provides;

“s41.—(1) Every child has the right— (a) to be registered at or soon after birth, and to have a name and nationality; (b) to basic nutrition, clothing, shelter, sanitation and health care; (c) to family care, protection and guidance, which includes the equal responsibility of the child’s parents to provide for the child— (i) whether or not the parents are, or have ever been, married to each other; and (ii) whether or not the parents are living together, have lived together, or are separated; (d) to be protected from abuse, neglect, harmful cultural practices, any form of violence, inhumane treatment and punishment, and hazardous or exploitative labour; and (e) not to be detained, except as a measure of last resort, and when detained, to be held— (i) only for such period of time as is necessary; and (ii) separate from adults, and in conditions that take account of the child’s sex and age”.

(2) The best interests of a child are the primary consideration in every matter concerning the child.

21. The accused step father has now learnt his lesson and understands that it is against the law to actuate any violence against children victim and must discipline children in a non –violent manner. The accused is a first offender and entered an early plea, is remorseful and has a young family of 2 children.
    
22. I will therefore fully suspend your 8 months sentence for 3 years.
    
23. You are cautioned not to reoffend in 3 years.
    
24. A FINAL DVRO Standard Non Molestation Order is issued against you; following your guilty plea, for the safety of the daughter– MICHELLE PAULINE SMITH , who is now regarded under the law as a protected person pursuant to Section 24 (a) (b) (i) of the Domestic Violence Act.
    
25. Take notice that you are to strictly comply with the FINAL DVRO. Failure of which you will be charged for breach of DVRO and the sentence is 12 months imprisonment and fine of $1,000.
    
26. You have a right by law to appeal this sentence within 28 days from to-date.
    

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