State v Vakalutusau - Sentence [2017] FJMC 69; Criminal Case 269.2017 (15 May 2017)

IN THE MAGISTRATES’ COURT OF FIJI
AT NAUSORI

Criminal Case No: - 269/2017

STATE

V

MAKARINA VAKALUTUSAU

For the Prosecution: Sgt. Vilisoni

The accused: In person

Date of Sentence : 15^th of May 2017

SENTENCE

1. MAKARINA VAKALUTUSAU, you were charged with one count of Assault Occasioning Actual Bodily Harm contrary to section 275 of the Crimes Decree No 44 of 2009.
2. You pleaded guilty this morning. You also admitted after an argument with your defacto partner you assaulted him on 05^th May 2017 with a timber causing injuries as per medical report.
3. I am satisfied about your plea and convict you for this offence.
4. The maximum penalty for Assault Occasioning Actual Bodily Harm is 05 years imprisonment.
5. In State v Tugalala [2008] FJHC 78; HAC025S.2008S (29 April 2008) her Ladyship justice Shameem said :

“The tariff for this offence appears to range from an absolute or conditional discharge to 12 months imprisonment.”

6. 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.
7. Considering the nature of offending and your culpability, I select 06 months as the starting point for your sentence.
8. 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 .
9. 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.
10. In this case I find the domestic relationship of the parties and using a timber for the assault at that time as aggravating this offence and enhance your sentence by 03 months to reach 09 months imprisonment.
11. In UK Guidelines the positive good character and provocation are considered as mitigating factors.
12. I consider your past good behavior and personal mitigating factors (married with 2 small children) mitigating this offence and deduct 03 months to reach 06 months imprisonment.
13. 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.
14. You pleaded guilty at the earliest opportunity and for that I deduct 1/3 to reach 04 months imprisonment.
15. Now I have to consider whether to suspend this sentence pursuant to section 26(2) (b) of the Sentencing and Penalties Decree.
16. Considering your past good behavior, early guilty plea and your children in my view you need a chance to rehabilitate.
17. Hence I suspend this 04 months imprisonment to 01 year.
18. If you commit any offence during next 01 year you can be charged under section 28 of the Sentencing and Penalties Decree.
19. For the safety of the victim I also grant a permanent domestic violence restraining order with standard non-molestation conditions.
20. 28 days to appeal.
    

Shageeth Somaratne

Resident Magistrate