State v Fonolahi - Sentence [2018] FJMC 74; Criminal Case 596 of 2018 (23 August 2018)

IN THE MAGISTRATES’ COURT OF FIJI
AT NAUSORI

Criminal Case No: - 596/2018

STATE

V

JALE KOTOBALAVU FONOLAHI

For the prosecution: WPC Siteri

The accused: In Person

Date of Hearing: 22^nd of August 2018

Date of Sentence : 23^rd of August 2018

SENTENCE

1. JALE KOTOBALAVU FONOLAHI , 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”) and one count of Breach of Domestic Violence Order contrary to section 77(1) of the Domestic Violence Act.
2. You pleaded guilty for both counts and admitted the summary of facts presented by the prosecution.
3. According to summary of facts on 09^th August 2018 at VUsuya Road, Nausori you assaulted your wife causing her multiple injuries. On that day you had an argument with your wife about finance and personal affairs and punched her head and back several times. When she ran out of the house you went after her and dragged her back in to the house and beat her with a mop handle. Your wife reported the matter to the police and medical examination showed numerous injuries.
4. I am satisfied that your plea was voluntary and unequivocal. Hence I convict you for both counts.
5. The maximum penalty for Assault Occasioning Actual Bodily Harm under the Crimes Act is 05 years imprisonment.
6. 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 now from 6 to 18 months imprisonment.
7. In Kumar v State [2018] FJHC 583; HAA05.2018 (10 July 2018) his Lordship Justice Aluthge held that the tariff in a domestic violence case is 9- 12 months’ imprisonment and if the assault is serious the decision in State v Prasad [2015] 493 justifies a sentence up to 18 months’ imprisonment.
8. The prescribed penalty for the Breach of DVRO for a person who has no conviction for similar offence is $1000/12 months imprisonment. There is no fixed tariff for this offence.
9. Section 17 of the Sentencing and Penalties Act, provides:

“If an offender is convicted of more than one offence founded on the same facts, or which form a series of offences of the same or a similar character, the court may impose an aggregate sentence of imprisonment in respect of those offences that does not exceed the total effective period of imprisonment that could be imposed if the court had imposed a separate term of imprisonment for each of them.”

10. The offences that you were convicted are found on same facts and hence I am going to impose an aggregate sentence of imprisonment for these two counts pursuant to section 17 of the Sentencing and Penalties Act.
11. 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 in the following manner :

"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."

12. Considering the above judicial precedents and based on objective seriousness, I select 09 months as the starting point for your aggregated sentence.
13. Since these are domestic violence offences I am mindful about the section 4(3) of the Sentencing and Penalties Act which the sentencing court must consider in sentencing an accused.
14. The aggravating factors are you assaulted your wife on her head which is a vulnerable place in the body, even after she ran for her safety you dragged her back and kept assaulting her and using a mop stick also for this assault. For these aggravating factors I add 09 months to reach 18 months imprisonment.
15. In mitigation you submitted that you are 37 years old, married with 4 children, and reconciled with your wife.
16. It is common practice to see in domestic violence offences for the accused to come to the court and submitted that he has reconciled with the victim and sometimes the victims also confirmed that.
17. In Patel v State [2011] FJHC 669; HAA030.2011 (27 October 2011), Justice Madigan held:

“[8] This is a domestic violence offence and as such it cannot be reconciled. (Part III Section 3 (b) of Domestic Violence Decree). The appellant’s ground that the Magistrate did not allow for credit for reconciliation cannot be made out. The victim in this case cannot reconcile with the appellant in order to mitigate this offence. Nor should the Magistrate have allowed it to be a factor in his mitigation “list”. Reconciliation plays no part in a domestic violence offence either for or against an accused.”

18. In State v Kumar [2011] FJHC 341; HAA 020.2010 (9 June 2011), Justice Madigan held:
    

“A domestic violence offence which this obviously is cannot be reconciled and in any event the Court record notes that the victim did not want to reconcile. It is incumbent upon the tribunal or officer of the Court to have regard to the Domestic Violence Decree which came into force on the 1st of December 2009.The Decree was enacted to protect persons, men women and children, from abuse in domestic environment and if the Courts do not make findings and ruling within the spirit of the Decree, then that altruistic arm is thwarted.”

19. The victim has not confirmed about the reconciliation and even if she informed that I would not have accepted that. There are no evidence to show that there was genuine reconciliation and accordingly I disregard this as a valid mitigating factor.
20. For the other mitigating factors I deduct 03 months from your interim sentence to reach 15 months imprisonment.
21. You have a previous conviction and not entitle for discount for your previous good character.
22. You pleaded guilty only on the first day when you appeared in the court and for that I deduct 1/3 to reach 10 months imprisonment.
23. Now I would consider whether to suspend your 10 months imprisonment pursuant to section 26(2) (b) of the Sentencing and Penalties Act.
25. In State v Kailoma [2018] FJHC 763; HAC46.207 & HAC63.2017 (21 August 2018) his Lordship Justice Goundar said:

“The courts will never condone family violence. Family violence must be denounced. The primary purpose of sentence is deterrence, both special and general”

26. You have previously assaulted your wife and given a suspended sentence by this court on February 2018. Whilst this sentence was in operation you again assaulted your wife even disregarding a domestic violence restraining order that was granted in her favor. Now you are asking this court for leniency. By reoffending within such a short period of time you showed that you are a danger to your wife. Your behavior needs to be denounced and your family needs to be protected from future violence. Since the suspended sentence and DVRO are not working for you, this time you will be given a custodial sentence.
27. JALE KOTOBALAVU FONOLAHI, accordingly you are sentenced to 10 months imprisonment for this charge.
28. For the safety of the victim I also issue a permanent domestic violence restraining order with standard no contact conditions.
29. 28 days to appeal.

Shageeth Somaratne

Resident Magistrate