Home | Databases | WorldLII | Search | Feedback Magistrates Court of Fiji

State v Ledua [2012] FJMC 342; Criminal Case 664.2012 (10 December 2012)

IN THE RESIDENT MAGISTRATE'S COURT OF FIJI
AT SUVA

Criminal Case No; 664/2012

STATE

V

JOKATAMA LEDUA

Prosecution : WPC Elina, Police Prosecutor.

Accused : Mr. Tawake P. (Legal Aid Commission)

SENTENCE

1. Complainant victim of this case has been your de-facto wife. She was 30 and engaged in domestic duties. On 07.04.2012 she asked you to carry your 7 month old baby to ease him from crying. However you got annoyed from her call and later threw a punch at her.
   
2. She reported this matter to the police and shortly she was medically examined. The medical report states that she sustained mild swelling on her left forehead due to the assault.
   
3. You were then arrested and interviewed under caution. The allegation was admitted during the caution interview.
   
4. This incident led the police investigators to charge you on the following count.
   
   1. Assault Causing Actual Bodily Harm – Contrary to section 275 of the Crimes Decree No 44 of 2009.
      
5. You initially appeared without any legal representation and indicated willingness to seek Legal Aid assistance. The Court granted a date to facilitate your request. On 12.11.2012 you decided to enter a 'plea of guilt' before this Court. The Court is satisfied on the voluntariness of your plea.
   
6. Section 154 of the Criminal Procedure Decree will not have any application to this case for reconciliation due to the domestic setting of the facts. Thus Court further proceeded to issue an interim domestic violence restraining order against you for the well being of the victim until the conclusion of this case.
   
7. Foregoing Summary of Facts was read over, explained and having understood the same, you admitted it. This Court convicts you for the offence.
   
8. The Penal Code offence of 'Assault Occasioning Actual Bodily Harm' under Sections 245 attracted a maximum sentence of 05 years imprisonment. The present offence even though brought under Section 275 of the Crimes Decree 2009 is similar.
   
9. The Tariff for 'Assault Occasioning Actual Bodily Harm' under Section 245 of the Penal Code (now repealed), varies from a suspended sentence to 09 months imprisonment. (per Goundar J in Jonethani Sereka v State [2008]HAA 027/08S, 25 APR 2008)
   
10. In view of the foregoing facts and the sentencing guidelines stipulated in section 4 (3) of the Sentencing and Penalties Decree 2009, I select 07 months imprisonment as the starting point for your sentence.
    

AGGRAVATING FACTORS

11. The victim is the de-facto wife of you and she was 30 years old. The vulnerability of the victim due to the domestic relationship is indeed an aggravating factor in the offence.
    
12. In the circumstance, I increase the sentence by another 03 months.
    
13. Period of imprisonment now stands at 10 months.
    

MITIGATING FACTORS

14. Your early guilty plea takes 3 months of your sentence off.
    
15. In your mitigation submission, you stated that you are a 33 year old, separated from the relationship, unemployed person. You have sought forgiveness from the complainant victim.
    
16. However the Court notes that you are not a first offender. Therefore I rule that you are not entitled for the concession which is given to the persons of good character.
    
17. The Court was informed by your mitigation submission that the victim had left you from the relationship.
    
18. The effect of your violence can be envisaged from her decision to leave you and your relationship. The legal system does not wish to intervene in to the relationships of the persons. There can be disagreements and differences between parties. And also there should be some room for the parties to resolve their own problems. But it must be free from any physical or physiological violence.
    
19. It is the paramount duty of domestic legal framework to ensure a violence free household.
    
20. Your final term of imprisonment now stands at 7 months.
    
21. In terms of Section 26(2)(b) of the Sentencing and Penalties Decree 2009 a sentence below two years could be suspended by this Court.
    
22. Section 4(1) (c) and (e) of the Sentencing and Penalties Decree 2009 state that the Court should deter offender and the other persons of the community from committing the same or similar offences. And also it is important to denounce such crimes.
    
23. You have not been charged for a similar offence prior to the incident. These circumstances warrant a non custodial sentence. On the other hand the Court has to consider an intervention to the increasing number of domestic violence cases. A domestic relationship of parties does not give any kind of authorization to either party to use violence on the other party to solve their problems. The offenders of such should bear in mind that the Court will act on them strictly even they are first offenders.
    
24. However you stated in your mitigation that you are currently in custody and looking after your one year old son. If the Court issues a custodial sentence the direct impact will be on the child and it will deteriorate his well being. Therefore the Court decided to suspend your sentence.
    
25. Jokatama Ledua today you are sentenced to 7 months imprisonment and it is suspended for 12 months.
    
26. Any subsequent conviction during the period of suspension will be a ground for the reactivation of the term imposed and suspended by this Court.
    
27. Further the interim domestic violence restraining order which was issued by this Court for non molestation will have permanent effect on you. The order is made in accordance with section 24(1) (b) (1) of the Domestic Violence Decree 2009 to ensure wellbeing of the victim.
    
28. Twenty eight (28) days to appeal.
    

Pronounced in open Court

Yohan Liyanage
Resident Magistrate

10th December 2012