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State v Nasaunibau [2015] FJMC 104; Criminal Case 1663.2015 (29 September 2015)

IN THE MAGISTRATES’ COURT OF FIJI
AT SUVA
Criminal Case No: - 1663/2015

STATE

V

PENITATI NASAUNIBAU

For the prosecution: PC Walter
For the accused: In person
Date of Sentence: 29th of September 2015

SENTENCE

1. PENITATI NASAUNIBAU , you were charged in this Court for one count of Assault Occasioning Actual Bodily Harm contrary to section 275 of the Crimes Decree No.44 of 2009.You pleaded guilty for this charge and also admitted the summary of facts.
   
2. According to the facts on 26th of September 2015 whilst the complainant was trying to withdraw some money, you punched on her right side of her eye causing injuries.
   
3. I am satisfied that your plea was unequivocal and convict you for this charge.
   
4. I am mindful that since this is a domestic violence offence and therefore I have considered the Section 4(3) of the Sentencing and Penalties Decree in addition to other provisions in the Decree .
   

The Law and the Tariff

5. The maximum penalty for this offence is 05 years imprisonment.
   
6. In State v Tugalala [2008] FJHC 78; her Ladyship Justice Shameem held that tariff for this offence is from absolute or conditional discharge to 12 months imprisonment.
   
7. In “State vs Anjula Devi” Criminal Case No. 4 of 1998 Lab, it was held that the tariff for “Assault Occasioning Actual Bodily Harm” ranges from a suspended sentence where there is a degree of provocation and no weapon used, to 9 months imprisonment or the more serious cases of assault.
   
8. In domestic violence cases sentence of 18 months imprisonment have been upheld. (Amasi Korovata v The State [2006] HAA 115.2006S)
   

Aggravating Factors

9. You assaulted you de facto partner and breached the trust. This falls also under a domestic violence offence .
   

Mitigating factors

10. The following are considered as mitigating factors:
    
    1. You are 36 years old;
    2. Married with a child;
    100. Reconciled( little weight is given)
    4. First offender.
       
11. After considering the facts in this case, I select 07 months as the starting point add 05 months for aggravating factors to reach 12 months. For the mitigating factors deduct 03 months and for pleading guilty 1/3 is given to reach 06 months imprisonment.
    
12. Even though you are a first offender I do not think fully suspended sentence is appropriate. The victim was present in the Court and even after 03 days the injuries were visible which shows the force that you used for this assault. But considering your past good behavior and for the family I partly suspend this sentence.
    
13. You have to serve 03 months in prison and balance 03 months are suspended for 02 years. If you commit any offences during the operational period you can be charged under section 28 of the Sentencing and Penalties Decree.
    
14. For the safety of the complainant as well as her children, I also issue a permanent domestic violence order with standard non-molestation conditions.
    
15. 28 days to appeal
    

Shageeth Somaratne
Resident Magistrate