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State v Kadavu [2013] FJMC 396; Criminal Case 311.2012 (6 November 2013)

IN THE MAGISTRATE COURT OF FIJI
AT RAKIRAKI
CRIMINAL JURISDICTION
CRIMINAL CASE NO. 311/12

BETWEEN:

THE STATE

AND:

PERETARIKI KADAVU

Prosecution: Cpl Chin Samy
Accused: Mr Titoko

SENTENCE

1. Peretariki Kadavu 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 admitted that you were not forced to plead guilty to the charge and that you pleaded voluntarily.
   
3. The Court was satisfied that your guilty plea was unequivocal and convicted you as charged.
   
4. The facts are on 20th November 2012 at 7.30am at Veidovu Settlement Matawailevu Ra, you confronted your wife the complainant (Litia Tabakala, 6oyrs) as to why there were so many people in the house. The complainant told you that they were relatives who came to visit you as you were sick. There was an argument whereby you punched complainant on her head 4 times and also chased her out of the house.
   

The matter was reported to police and you were arrested. You were cautioned interviewed and then charged accordingly. The complainant was also taken for medical examination and the medical report shows the injuries sustained consistent with the assault.

5. You have entered a guilty plea albeit late. This is your first offence, you've remorseful and have reconciled with complainant.
   
6. The aggravating factors would be the lack of provocation and breach of trust.
   
7. It should be noted that because of your relationship with the complainant the subject offence is regarded as a domestic violence offence.
   
8. Under the Crimes Decree no. 44 of 2009, the prescribed penalty for Assault Causing Actual Bodily Harm under section 275 is a maximum imprisonment term of 5 years.
   
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 9 months imprisonment.
    
11. For the aggravating factors I increase your sentence by 2 months. Your sentence is now 11 months.
    
12. For the mitigation and this being your first offence I reduce your sentence by 2 months. For your guilty plea I further reduce your sentence by 3 months. Your final sentence is now 6 months.
    
13. I now consider whether your sentence should be suspended. You have a good background and you deserve some leniency from the court. For your rehabilitation your sentence will be suspended.
    
14. I therefore order that your sentence of 6 months be suspended for 2 years. If you commit any offence within 2 years, you'll be further charged for breaching this suspension order and if convicted you'll be made to serve the 6 months or part of it with any other penalty imposed in that other offence.
    
15. In addition since you've been sentenced for a domestic violence offence, the interim restraining orders made under section 27(2) of the Domestic Violence Decree on 4th December 2012 is made permanent forthwith.
    
16. This Domestic Violence Restraining Order can only be varied, suspended or discharged by further orders of the court.
    
17. 28 days to appeal.
    

Samuela Qica
Resident Magistrate

6th November 2013