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State v Vunivavalagi - Sentence [2019] FJHC 370; HAC48.2018 (29 April 2019)

IN THE HIGH COURT OF FIJI AT SUVA

CASE NO: HAC. 48 of 2018

[CRIMINAL JURISDICTION]

STATE

V

MOLITONI TARO VUNIVAVALAGI

Counsel : Ms. S. Kiran and Ms. S. Sharma for the State

Mr. L. Qetaki for the Accused

Hearing on : 15 - 17 April 2019
Summing up on : 17 April 2019
Judgment on : 26 April 2019
Sentenced on : 29 April 2019

SENTENCE

1. Molitoni Taro Vunivavalagi, you stand convicted of the following offence;
   

Statement of Offence

Assault Causing Actual Bodily Harm: contrary to section 275 of the Crimes Act 2009.

Particulars of Offence

MOLITONI TARO VUNIVAVALAGI on the 14^th day of December, 2017 at Lami, in the Central Division assaulted Emali Kudruva thereby causing actual bodily harm.

2. You were charged with the offence rape in addition to the above charge. You pleaded guilty to the above charge during the final pre-trial conference, on 12/04/19 and the trial proceeded only in respect of the rape count. The assessors unanimously opined that you are not guilty of the offence of rape and this court concurred with the said opinion and you were accordingly acquitted.
   
3. According to the evidence led in the trial, after having consensual sexual intercourse with the complainant, you punched her in her face and her head. The complainant said that you punched her out of jealousy as she was talking to the two other individuals who were there at the time. During the medical examination the doctor had observed inter alia that the complainant was bleeding from the nose and her left eye socket was swollen. However, the evidence revealed that you sought the complainant’s forgiveness soon after you assaulted her and the two of you reconciled.
   
4. The maximum penalty for the offence under section 275 of the Crimes Act 2009 (“Crimes Act”) is an imprisonment term of 05 years. The applicable sentencing tariff is an imprisonment term of 03 months to 12 months and the sentencing court may suspend the final sentence or opt for any other relevant sentencing option in terms of the provisions of the Sentencing and Penalties Act at its discretion. (See Naqialawa v [2017] FJHC 484; 484; HAA15.2017 (29 June 2017))
   
5. I would select 03 months as the startinnt of your sentence.
   
6. Considering the injuries sustained by the complainant as a result of your assault, I would add 12 months to your sentence. Now your sentence is an imprisonment term of 15 months.
   
7. I would consider the following as your mitigating factors;
   1. You sought forgiveness from the complainant soon after the incident; and
   2. You are a first offender.
      
8. Your counsel had submitted that you are 28 years old and you are married. You have a 7 year old child.
   
9. Considering the above mitigating factors, I would deduct 05 months of your sentence. Now your sentence is an imprisonment term of 10 months.
   
10. In view of your guilty plea I would give you a discount of one-fifth. Accordingly, a further 02 months will be deducted. Your final sentence is an imprisonment term of 08 months.
    
11. It is submitted that you were in remand for this matter from 21/12/17 to 01/05/18 and then from 04/04/19 to date. Accordingly, you have spent about 05 months and 05 days in custody. The period you have been in custody shall be considered as a period of imprisonment already served by you in terms of section 24 of the Sentencing and Penalties Act.
    
12. In the result, your sentence is an imprisonment term of 08 months and in view of the time spent in custody, time remaining to be served is an imprisonment term of 02 months and 25 days.
    
13. Given the fact that you are a first offender and the circumstances of your offending I consider it appropriate to suspend the remaining period of your sentence in terms of section 26 of the Sentencing and Penalties Act.
    
14. The court clerk will explain you the effects of a suspended sentence.
    
15. Thirty (30) days to appeal to the Court of Appeal.
    

Vinsent S. Perera
JUDGE

Solicitors;

Office of the Director of Public Prosecutions for the State.
Legal Aid Commission for the Accused.