State v Nakasamai - Sentence [2017] FJMC 95; Criminal Case 428.2017 (21 July 2017)

IN THE MAGISTRATES’ COURT OF FIJI
AT NAUSORI

Criminal Case No: -428/2017

STATE

V

SIMIONE NAKASAMAI

For the Prosecution: WPC Losalini

The accused: In person

Date of Sentence : 21^st of July 2017

SENTENCE

1. SIMIONE NAKASAMAI, you pleaded guilty this afternoon to one count of Assault Occasioning Actual Bodily Harm contrary to section 275 of the Crimes Act No 44 of 2009.
2. You also admitted on 11/07/2017 at Cautata Village, Tailevu you assaulted your wife causing injuries. You asked her about a DVRO she applied against you and after that hit her head with firewood.
3. I am satisfied that your plea was unequivocal and convict you for this charge.
4. The maximum penalty for Assault Occasioning Actual Bodily Harm under the Crimes Act 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. In Laisiasa Koroivuki v the State [2013] FJCA 15; AAU0018.2010 (5 March 2013) his Lordship Justice Goundar 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 stage. 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."

7. 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.
8. Considering the objective seriousness, I select 04 months as the starting point for your sentence.
9. 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 .
10. 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.
11. In this case I find the breach of trust, using the firewood for the assault and the place of the body you assaulted (head) aggravating this offence and enhance your sentence by 08 months to reach 12 months imprisonment.
12. In UK Guidelines the positive good character and provocation are considered as mitigating factors.
13. In mitigation you submitted the following :
    1. Seeking forgiveness ;
    2. Reconciled;
    100. First offender.
14. For the above mitigating factors, I deduct 03 months to reach 09 months imprisonment.
15. 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.
16. You pleaded guilty at the earliest opportunity and for that I deduct 1/3 to reach 06 months imprisonment.
17. Now I have to consider whether to suspend this sentence pursuant to section 26(2) (b) of the Sentencing and Penalties Act.
18. The reason that led to this assault is that your wife applying for a DVRO against you. This is her right under the Domestic Violence Act as any citizen in this country. Just because she came to the court asking for protection, you argued with her and assaulted her head with firewood. She is lucky to escape with minor injuries. But these facts are sufficient in my mind to warrant custodial sentence in this case to denounce your behavior and to punish for this offence.
19. SIMIONE NAKASAMAI, you are sentenced to 06 months imprisonment for this charge.
20. For the safety of the victim, I also grant a permanent domestic violence restraining order with standard non-molestation conditions.
21. 28 days to appeal.
    

Shageeth Somaratne

Resident Magistrate