State v Nima - Sentence [2018] FJMC 124; Criminal Case 184 of 2018 (11 September 2018)

IN THE MAGISTRATES COURT OF FIJI AT TAVUA
CRIMINAL JURISDICTION

Criminal Case No: 184 - 2018
STATE
-v-
TIACORO NIMA

For Prosecution : WPC Chand [ Police Prosecution ]
For The Defendant : Mr Samy [ Legal Aid Commission ]

Date of Sentence : 11^th day of September 2018

SENTENCE

BACKGROUND

1. TIACORO NIMA, you are here to be sentenced upon pleading guilty to the following charge:
   

Statement of Offence

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

Particulars of Offence

TIACORO NIMA on the 3^rd day of June, 2018 at Yaladro, Tavua in the Western Division assaulted SUNIA VULI 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 42 year old wife. She returned from a function at around 2am and you questioned her about her whereabouts. You denied the facts proposed that you punched her. In court on the day you pleaded guilty, you said that you slapped her several times on her face.
   
5. When your wife was medically examined about 4 hours later, the medical officer amongst other things, observed that your wife had bruises to the left side and right side of her face measuring 3 cm x 3 cm. She also had elevated blood pressure. Your wife was also experiencing muscular pain.
   
6. When you were interviewed by police later, you described to the police that you went shopping with your family and they came home earlier than you. Your wife of 15 years then went with some ladies and left your two children at home. You said that she did not tell you that she was leaving. After reaching home, you then went to drink yaqona. You came back and saw the mosquito coil still lit and when your wife returned, you asked her why she left the children and then you slapped her. You said that you slapped her 2 times.
   
7. On the day you pleaded guilty in court, you said that you slapped your wife 4 -5 times. You told me that you slapped her because the mosquito coil was on and she was not at home and the children were sleeping. You admitted that the children were at home when you slapped your wife. You said that the children were sleeping.
   
8. You have been in custody or remand for 1 day because of the case.
   
9. You are a first offender.
   
10. In your mitigation, counsel submitted that you are 45 years old. As a result of the case, you are staying away from your family as part of the Domestic Violence Restraining Order [ interim order ] imposed earlier on you. You say that you are willing to apologize to the victim. You have 3 children, the youngest is in class 3 and the eldest is in form 3. You are the sole breadwinner. You also look after your elderly mother who is 87 years old. You say that this was in the heat of the moment and you were upset during the heated argument because the children were unsupervised. You have cooperated with the police and you have pleaded guilty early.
    

LAW

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

TARIFF

12. 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

13. Considering the circumstance of your case, a 4 month imprisonment term is selected as a starting point.
    

AGGRAVATING FEATURE

14. This was a domestic situation involving your wife and your violence was committed in the presence of your children. I doubt that they would have been sleeping at the time. Even if they were, you said that you slapped your wife during a heated argument. This surely would have awoken your children even if they were sleeping.
    
15. Your act of violence will no doubt have a lasting impact on them.
    
16. I don’t accept that you were upset because of the mosquito coil. You yourself went home and found your wife gone. You then then went and drank yaqona. I don’t see any evidence that you took your children with you to drink yaqona. That would mean that you left them at home too.
    
17. Your position suggests to me that you think that your wife has more of a responsibility towards the children than you.
    
18. This mentality is wrong and has to change.
    
19. Both of you are equally responsible for the children.
    
20. If you had checked the house earlier before you left to drink yaqona, you probably would have seen the lit mosquito coil.
    
21. If your wife was not at home to supervise the children, then you should have stayed home and supervised the children and forfeited drinking yaqona.
    
22. The mosquito coil being lit or your children being unsupervised, I do not accept was the main reason why you became angry and violent.
    
23. Your anger stems from your wife leaving home and going to Rukuruku without telling you and then returning home at 2am.
    
24. I find no provocation here. Your anger and violence was unprovoked.
    
25. You hit your wife several times.
    
26. Your sentence is increased by 3 months because of all these.
    
27. Your current sentence is 7 months imprisonment.
    

MITIGATION

28. I accept that you are willing to apologize to your wife and that you have not been with your family since June 2018 or since the inception of this case.
    
29. You have cooperated with police.
    
30. I will take into account your past good character as well.
    
31. You look after the family and your action suggests to me that you intend to continue that after this case.
    
32. Although time in remand or custody is not necessarily mitigation, I will consider it here as it was only 1 day.
    
33. Altogether, your sentence is reduced by 2 months imprisonment.
    
34. Your current sentence is 5 months imprisonment.
    

GUILTY PLEA

35. You sentence is further reduced by 2 months for your guilty plea.
    
36. Your interim sentence stands at 3 months imprisonment.
    

SUSPENSION

37. I can suspend your 3 months imprisonment term either in whole or in part pursuant to section 26 ( 2 ) ( b ) of the Sentencing and Penalties Act 2009.
    
38. I also take into account the factors outlined in section 4 of the Sentencing and Penalties Act 2009 when deciding whether or not to suspend your sentence.
    
39. I am only inclined to suspend your sentence in part.
    
40. This is especially to reflect deterrence, to punish you and to allow you return back to society to support your family and your elderly mother.
    

FINAL SENTENCE

41. Your 3 month imprisonment term will be partially suspended.
    
42. You will serve 2 weeks imprisonment immediately.
    
43. The remaining 2 months and 14 days [ 2 weeks ] imprisonment, will be suspended for the next 3 years.
    
44. Commit any other offence in the next 3 years and this suspended term may be activated.
    

[suspended term explained to the defendant]

45. 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 4^th day of June 2018 in this case will be made final. This is to protect your wife.
    
46. From that DVRO, only section 27 standard non-molestation conditions will remain. Section 29 non-contact is removed.
    
47. Breach any condition of this final DVRO and you may be charged with a separate offence of breaching a DVRO.
    

[ explained to the defendant ]

48. 28 days to appeal.
    

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

Dated at Tavua this 11^th day of September, 2018.