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State v Yadraca [2013] FJMC 381; Criminal Case 200.2013 (21 October 2013)

IN THE MAGISTRATE COURT OF FIJI
AT TAVUA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. 200/13

BETWEEN:

THE STATE

AND:

LITIA YADRACA

Prosecution: PC Dinesh
Accused: In Person

SENTENCE

1. Litia Yadraca you pleaded guilty to the offence of Common Assault contrary to section 274 of the Crimes Decree No. 44 of 2009.
   
2. You waived your right to counsel and pleaded guilty to the charge voluntarily. You also accepted the facts tendered by prosecution.
   
3. The Court after being satisfied that your guilty plea was unequivocal convicted you as charged.
   
4. The facts are on 10th October 2013 at 7.15pm the complainant who is your daughter (Vilisi Mouga, 13yrs) on approval of her aunt (mother's sister) went to attend a carnival at Vatukoula Primary School with a friend. The complainant returned from the carnival at about 11.15pm but slept at her friend's home as she was scared of you.
   

At about 12.30am on 11th October 2013 you went to look for the complainant at her friend's house. When the complainant came out of her friend's house you then struck her twice with a stick which you had. Complainant than ran to your house. You came home and struck her again twice. Your sister than stopped you from hitting her.

The matter was reported to police and you were arrested. You were cautioned interviewed and admitted the offence and was then charged accordingly.

5. You mitigated and I take the following in your favour:
   
   • First offender.
   • Guilty plea.
     
6. The aggravating factors would be:
   
   • Lack of provocation.
   • Breach of trust.
     
7. It should be noted that because of your relationship with the victim, the subject offence is regarded as a domestic violence offence.
   
8. Under the Crimes Decree no. 44 of 2009, the prescribed penalty for Assault under section 274 is a maximum imprisonment term of 1 year.
   
9. The tariff for the offence of Common Assault and 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).
   
10. In light of the circumstances of offending in this case, I commence my sentence at 6 months imprisonment.
    
11. For the aggravating factors I increase your sentence by 2 months. Your sentence stands at 8 months imprisonment.
    
12. For the mitigation and this being your first offence I reduce the sentence by 2 months. For the guilty plea I further reduce the sentence by 2 months. Your final sentence is thus 4 months imprisonment.
    
13. To give effect to the principle of deterrence you are sentenced to 4 months imprisonment.
    
14. I now consider whether your sentence should be suspended. Although the nature of the offending was unprovoked, this is your first offence hence I will grant you an opportunity to reform yourself. Therefore I'm going to suspend your sentence.
    
15. I order that your sentence of 4 months imprisonment be suspended for 2 years. If you commit any offence within the period of 2 years from today, you'll be further charged for breaching this suspension order and if convicted you'll be made to the serve the 4 months or part of it with any other penalty imposed in that other case.
    
16. The Court also orders that the Interim Domestic Violence Restraining Orders granted on 14th October 2013 are to be made permanent until it is varied, suspended or discharged by the court.
    
17. 28 days to appeal.
    

Samuela Qica
Resident Magistrate

21st October 2013