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State v Singh [2013] FJMC 106; Criminal Case 276.2012 (11 March 2013)

IN THE MAGISTRATE COURT OF FIJI
AT TAVUA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. 276/12

BETWEEN:

THE STATE

AND:

JOYTIKA SINGH

Prosecution: PC Dinesh
Accused: Ms Nasedra (Legal Aid Office)

SENTENCE

1. Joytika Singh you pleaded guilty to the offence of Assault Occasioning Actual Bodily Harm contrary to section 275 of the Crimes Decree No. 44 of 2009.
   
2. You pleaded guilty to the charge on your own free will. You admitted the facts submitted by prosecution. The Court being satisfied that your guilty plea being unequivocal convicts you as charged.
   
3. On 4/7/12 at 9am at Vuqele Vatukoula the complainant your mother in law (Maya Wati, 59yrs domestic duties) was assaulted by you. You were having an argument with your husband and in the process the complainant tried to stop your husband from hitting your son. You then kicked the complainant twice on the knee and she fell. The complainant was still down when you then kicked her on the left side of her stomach.

The matter was reported to police you were arrested and questioned for the allegation and charged accordingly.
The complainant was also taken for medical examination and her medical report shows that she sustained injuries.

4. Your counsel Ms Nasedra from Legal Aid mitigated on your behalf and I take the following in your favour:
   
   • Your guilty plea.
   • This is your first offence.
   • You've remorseful.
     
5. I consider the following as aggravating features in this case:
   
   • Prevalence of offence in community.
   • Lack of provocation.
     
6. The tariff for the offence of Assault Occasioning Actual Bodily Harm appears to range from an absolute or conditional discharge to 12 months imprisonment (see: State v Salote Tugalala, HAC025 of 2008). The High Court in Elizabeth Joseph v. The State [2004] HAA 030/04S and State v. Tevita Alafi [2004] HAA073/04S stated that it is the extent of the injury which determines sentence...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 (Amasai Korovata v. The State [2006] HAA 115/06S.
   
7. Due to your relationship to the complainant, the offending in this matter is regarded as a domestic violence offence. In considering the circumstances of the offending in this case, I take a starting point of 12 months.
   
8. For the aggravating features I increase your sentence by 1 month making your sentence at 13 months imprisonment.
   
9. I deduct 4 months for your guilty plea and a further reduction of 3 months for your good background and other mitigating circumstances. Your final sentence is now 6 months imprisonment.
   
10. This is your first offence and also remorseful for the offence. As the court sees it, you need to be given an opportunity to reform yourself. Your sentence of 6 months imprisonment will hence be suspended for 2 years.
    
11. If you commit any offence within the operational period of 2 years, you'll be further charged for breaching this suspension order and if convicted, you'll be made to serve the 6 months with any other punishment imposed in that case.
    
12. The domestic violence restraining order imposed by the court on 4/12/12 is now made permanent and can only be varied, suspended or discharged by further orders of the court.
    
13. 28 days to appeal.
    

Samuela Qica
Resident Magistrate

11th March 2013