State v Nailati - Sentence [2018] FJMC 109; Criminal Case 141 of 2018 (9 July 2018)

IN THE MAGISTRATES COURT OF FIJI AT TAVUA
CRIMINAL JURISDICTION

Criminal Case No: 141 - 2018

STATE
-v-
ISOA NAITUKU NAILATI

For Prosecution: WPC Chand [ Police Prosecution ]
Accused: In person, waived right to counsel

Date of Sentence: 9^th day of July 2018

SENTENCE

BACKGROUND

1. ISOA NAITUKU NAILATI, you are here to be sentenced upon pleading guilty to the following charge:
   

Statement of Offence

ASSAULT OCASSIONING ACTUAL BODILY HARM: Contrary to section 275 of the Crimes Act No: 44 of 2009.

Particulars of Offence

ISOA NAITUKU NAILATI on the 22^nd day of April, 2018 at Lewa SDA School compound in the Western Division assaulted RESINA ROSI thereby causing her actual bodily harm.

2. I am satisfied that your guilty plea to the charge is voluntary and that you understand the consequence of your plea.
   
3. After having admitted the facts proposed by the prosecution and having heard you, I have found you guilty accordingly.
   
4. The victim here is your 28 year old wife. She was three months pregnant at the time. You hit her during an argument where she was questioning you about your whereabouts. You hit her once on her stomach. She was on the floor at the time and she had to turn to save herself.
   
5. When she was examined by a medical officer about 2 hours later, your wife informed the doctor that she was hit on her back. Apart from the scratch to her right elbow, there were no other visible injuries observed on her.
   
6. I’m informed that the victim’s condition at the moment is normal and the prosecution don’t have any issue with this.
   
7. You were taken in by police and interviewed. You admitted hitting your wife with a piece of timber which is used as a door brace. You said that you had an argument with her about going to Nadi and not telling her. You said that you were also upset because your wife swore at you and your father.
   
8. You have been in police custody for 2 days.
   
9. You were granted bail by the court on the first day you were produced and that was on the 24^th of April 2018.
   
10. The court record does not reflect that you spent any time in remand because of the case.
    
11. You are a first offender.
    
12. In your mitigation you said that you have sought forgiveness from your wife and that the witness to this is the head teacher of the school where she teaches. Both you and your wife look after your 3 year and 1 year old children but your wife is working but you are currently not. You said that you were upset too because your wife put your clothes outside.
    

LAW

13. The maximum sentence that is imposable by law for the offence of assault occasioning actual bodily harm is up to 5 years imprisonment.
    

TARIFF

14. The sentencing tariff for assault occasioning actual bodily harm ranges between a suspended sentence to 9 months imprisonment depending on the degree of provocation and whether any weapon was used [ see for example Randipni Singh v The State HAA 13 of 2016 ( 17^th June 2016 ).
    

STARTING POINT

15. Considering the circumstance of your case, a 5 month imprisonment term is selected as a starting point.
    

AGGRAVATING FEATURE

16. I’m inclined to accept that this happened in the presence of your children. Having enquired of you, you admitted this fact.
    
17. Your 3 year old must have been horrified.
    
18. You used a weapon.
    
19. Your partner was 3 months pregnant at the time.
    
20. You have accepted that you hit her on the stomach.
    
21. You knew that she was pregnant. This strike was calculated.
    
22. Your sentence is increased by 4 months because of all these.
    
23. Your current sentence is 9 months imprisonment.
    

MITIGATION

24. I accept that the argument must have been heated. This still does not give you a license to have done what you did. However, the atmosphere and the passion existing at the time will be taken into account as part of your mitigation.
    
25. You sounded genuine to me when you were giving your mitigation.
    
26. Some consideration must also be taken for your past good character as well.
    
27. I accept that you have reconciled with your wife.
    
28. Time in custody, is not a mitigating factor but I will consider it here with your other mitigation since the number of days you spent in police custody is only 2 days.
    
29. Altogether, your sentence is reduced by 2 months imprisonment.
    
30. Your current sentence is 7 months imprisonment.
    

GUILTY PLEA

31. You sentence is further reduced by 2 months for your guilty plea.
    
32. Your interim sentence stands at 5 months imprisonment.
    

SUSPENSION

33. I can suspend your 5 months imprisonment term either in whole or in part pursuant to section 26 ( 2 ) ( b ) of the Sentencing and Penalties Act 2009.
    
34. I’m especially mindful of your young children and that your pregnant wife will need all the help she can get as her due date approaches.
    
35. I must also be considerate of the violence occasioned in this case and the context in which it was done.
    
36. The above must be balanced together with other factors such as the need for deterrence and to show the community’s denunciation of this type of violence.
    

FINAL SENTENCE

37. Therefore, your 5 month imprisonment term will be suspended in part.
    
38. You will serve 14 days imprisonment, effective immediately.
    
39. Your remaining 126 days will be suspended for 3 years and will be effective immediately too.
    

[suspended term explained to the defendant]

40. In addition, I will order that the interim Domestic Violence Restraining Order [DVRO] with standard non-molestation and non-contact conditions which was imposed on you earlier on the 24^th of April 2018 in this case will be made final. This is to protect your wife.
    

[ Final DVRO explained to the defendant and that he can still apply for a variation of the final DVRO ]

41. 28 days to appeal.

.....................................
Lisiate T.V. Fotofili
Resident Magistrate

Dated at Tavua this 9^th day of July, 2018.