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State v Wise [2013] FJMC 159; Criminal Case 99.2013 (18 April 2013)

IN THE RESIDENT MAGISTRATE'S COURT OF FIJI
AT NAVUA

Criminal Case No: - 99 /2013

STATE

V

HERBERT WISE

For Prosecution : -.Sgt.Lenaitasi
Accused : - In person

SENTENCE

1. HERBERT WISE, you were charged in this Court, for the following offence.
   

Statement of Offence [a]

DAMAGING PROPERTY – Contrary to Section 369 (1) of the Crimes Decree No 44 of 2009.

Particulars of Offence [b]

HERBERT WISE, on the 2nd day of February 2013, at Wainividio Settlement, Navua in the Central Division, willfully and unlawfully damaged, 01 Guitar valued at $800.00, the property of KATHERINE O'CONOR.

2. You waived right to counsel and pleaded guilty for the above charge on 19 March 2013. You also admitted the summary of facts.
   
3. According to summary of facts you had an argument with your de- facto partner and later smashed her guitar causing damages to the total value of $800.00.
   
4. I am satisfied about your plea and convict you for the above offence.
   
5. Maximum sentence for this offence is 02 years imprisonment. There is no set of tariff for the offense of Damaging Property (Gounder J in Tikomainiusiladi v State [2008] FJHC 18; HAA 134.2007 (15 February 2008).
   
6. After considering summary of facts in this case, I select 6 months as the starting point.
   

Aggravating Factor

7. The victim is your de- facto partner thus making this a domestic violence offence. For this I add 03 months to reach 09 months imprisonment.
   

Mitigating Factors

8. Since you have pleaded guilty at the first available instance following the decision of Vilimone v State [2008] FJHC 12; HAA I deduct 1/3 from your sentence to reach 06 months.
   
9. You are not a first offender and not entitled for any discounts for your past behavior.
   
10. You filed mitigation submission in this Court on 16 April 2013. But I find it relates to some other case and therefore would not consider it in this case.
    
11. This Court can suspend a sentence below 02 years under section 26(2) (b) of the Sentencing and Penalties Decree.
    
12. You are not a first offender. But you saved Court's resources by pleading guilty early. Therefore you will be given a chance to reform.
    
13. You are sentenced to 06 months imprisonment and that will be suspended for 02 years.
    
14. If you commit any crime during the next 02 years you can be charged under sec 28 of the Sentencing and Penalties Decree.
    
15. I also grant a permanent domestic violence restraining order with standard non molestation condition in favor of the victim to prevent future incidents like these.
    
16. The complainant can claim damages caused to her property through a civil action.
    
17. 28 days to appeal.
    

18 April 2013

H.S.P.Somaratne
Resident Magistrate, Navua