State v Dalikadina [2018] FJMC 11; Criminal Case 4 of 2018 (21 February 2018)

IN THE MAGISTRATES’ COURT OF FIJI
AT TAILEVU

Criminal Case No: - 04/2018

STATE

V

SERUPEPELI DALIKADINA

For the prosecution: Sgt.Rao

The accused: In person

Date of Sentence : 21^st of February 2018

SENTENCE

1. SERUPEPELI DALIKADINA, you were charged with one count of Assault Occasioning Actual Bodily Harm contrary to section 275 of the Crimes Act No 44 of 2009(“Crimes Act”).
2. You pleaded guilty and also admitted the summary of facts presented by the prosecution.
3. According to the summary of facts on 16/12/2017 your girlfriend who was a Nurse at the Korovou hospital was celebrating Christmas party with her work mate when you came to pick her. You went with her to Tailevu night club where argument heated up which resulted in you holding the neck of her and punching her forehead. The victim was medically examined on 18/12/2017 where the medical officer noticed the injuries as per the medical report.
4. I am satisfied that your plea was made voluntarily and unequivocal. Accordingly I convict you for this charge.
5. The maximum penalty for Assault Occasioning Actual Bodily Harm under the Crimes Act is 05 years imprisonment.
6. In Khan v State [2017] FJHC 746; HAA68.2017 (6 October 2017) his Lordship Justice Aruna Aluthge said:

“It was held in State v Tugalala [2008] FJHC 78; HAC025S.2008S (29 April 2008), that the tariff for this offence should range from an absolute or conditional discharge to 12 months’ imprisonment. As noted in earlier cases, Elizabeth Joseph v. The State [2004] HAA 030/04S and State v Tevita Alafi [2004] HAA073/04S, it is the extent of the injury which determines sentence. The use of a pen knife for instance, justifies a higher starting point. Where there has been a deliberate assault, causing hospitalization and with no reconciliation, a discharge is not appropriate. In domestic violence cases, sentences of 18 months’ imprisonment have been upheld in Amasai Korovata v. The State [2006] HAA 115/06S.”

7. In Matai v State [2018] FJHC 25; Criminal Appeal 108.2017Ltk (26 January 2018) his Lordship Justice Madigan said that the tariff for a domestic violence assault causing actual bodily harm is from 6 to 18 months imprisonment.
8. 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."

9. Considering the above judicial precedents and based on objective seriousness, I select 09 months as the starting point for your sentence.
10. You assaulted the head of the victim (forehead) which is consider as a vulnerable place in the body. I consider this as an aggravating factor in this case. Accordingly I enhance your sentence by 03 months to reach 12 months imprisonment.
11. In mitigating you submitted the following :
    1. You are 31 years old;
    2. Single ;
    100. Working as a military officer ;
    4. Seeking forgiveness from the court.
12. For these mitigating factors I deduct 03 months to reach 09 months imprisonment.
13. You are not a first offender and hence not entitle for discounts for your character.
14. Finally for your early guilty plea I deduct 1/3 to reach 06 months imprisonment.
15. Now I have to consider whether to suspend this sentence pursuant to section 26(2) (b) of the Sentencing and Penalties Act.
16. You have previously also assaulted the victim and sentenced by Korovou court to 06 months imprisonment which has been suspended for 02 years on 26/09/2017. Within a period of 03 months you have unleashed violence on the victim again causing her serious injuries. In fact according to the medical report she was suffering from symptom of psychotic disorder at that time and even had to refer to St.Giles hospital for treatment. You have totally disregarded the leniency shown by the court previously by committing a similar offence against the same victim. Hence a custodial sentence is merited this time to deter you from reoffending and protect the victim in future.
17. Accordingly I sentenced you to 06 months imprisonment for this charge. I also grant a permanent domestic violence restraining order with standard non-molestation conditions and standard non-contact conditions in favor of the victim to protect her from further violence.
18. 28 days to appeal.

Shageeth Somaratne

Resident Magistrate