IN THE RESIDENT MAGISTRATE'S COURT
ATlAUTOKA FIJI ISlANDS

CRIMINACl ASE NO 662 Of 2012

STATE

v

RAKESH LAL

BEFORE Resident Magistrate, Kashyapa Wickaramasekara
Friday 2ih February 2015
COUNSEl Cpl. Shelvin for the Prosecution
Ms. Hazelman (lAC) for the Accused

SENTENCE

1. You, RAKESH lAl, were charged by this court, for one count of Indecently Annoying Any Person one count of Assault Occasioning Actual Bodily Harm and one count of Breach of DVRO which are punishable under Sections 213 (1) (a) and 275 of the Crimes Decree No 44 of 2009 and section 77 (1) (a) of the Domestic Violence Decree 2009.

2. The Charges and Particulars of Offences are as follows:

First Count
Statement of Offence
Indecently Annoying Any Person: contrary to Section 213 (1) (a) of the Crimes Decree No.44 of 2009.

Particulars of Offence
RAKESH lAl on the 14th day of November 2012 at Lautoka in the Western Division with intent to annoy the modesty of MADHVI GOUNDER uttered the words "Maichod" which means mother fucker intending that such be heard by the said MADHVI GOUNDER, likely to offend her modesty.

Second Count
Statement of Offence
Assault Causing Actual Bodily Harm: contrary to Section 275 of the Crimes Decree No.44 of 2009.

Particulars of Offence
RAKESH LAL on 14th day of November 2012 at Lautoka in the Western
Division assaulted MADHVI GOUNDER thereby occasioning her actual bodily harm.

Third Count
Statement of Offence (a)
BREACH OF DOMESTIC VIOLENCE RESTRAINING ORDER: contrary to Section 77 ( 1) of the Domestic Violence Decree No. 33 of 2009

Particulars of Offence (b)
RAKESH LAL on the 14th day of November 2012 at Lautoka in the Western Division, breached the Loutoko Magistrate Court Domestic Violence Restraining Order No. 283/2011 doted 22nd September 2011 by verbally abusing and physically assaulting MADHVI GOUNDER, a protected person.

3. You pleaded guilty for the said offences on the 13th January 2015 on your own will and accord. I am satisfied that you fully comprehended the legal effect of your plea and your plea was voluntary and free from influence. You further admitted to the Summary of Facts read over and explained to you in court on the above date, which supported the elements of all the above charges. As such you are found guilty and convicted by this court as charged on all three counts of Indecently Annoying Any Person, Assault Causing Actual Bodily Harm and Breach of Domestic Violence Restraining Order.

4. Summary of facts, as admitted by you before this court, revealed that these offences were committed from the 14th of November 2012, at Guruwaiya Street, Lautoka.

5. The Summary of Facts in respect of these offences reads to the following;

It is revealed that the Complainant is your wife and you are living together under one roof at No. 05, Guruwaiya Sreet, Lautoka, your family house. On the day of the incident you had come home around 4 p.m. drunk. The Complainant had questioned you as to whether you had gone to work on this day to which you had started swearing at the Complainant by uttering 'Mychod' meaning mother fucker and had replied that you had being drinking liquor at the ground. You had further argued with the Complainant as to why she questioned you on going to work which had led to a domestic dispute. You had thereby punched the on the ear of the Complainant and also had kicked her from behind which resulted in causing injuries to her. By these actions you had further breached the DVRO issued against you by the Lautoka MC under case no. 283/2011 dated 22/09/2011.

You had been arrested by police on the next date whereas you had to be locked up in the cell since you heavily smelt of liquor and thus had to allowed time to become normal prior to the interview. However, when interviewed under caution you had stated that you had being drunk and as such unaware of you actions.

6. Submissions in mitigation inter alia has prayed for not to record a conviction. There is no actual ground on which this plea is made apart from the statement "to allow him to rehabilitate and better his future". It is clear that the above is no formidable ground on which a court should consider not to record a conviction.

However, at least for future reference on this nature of an application, the court shall explore the legal boundaries of such application before moving on to decide a suitable sentence on you.
The application not to record a conviction shall be based on the provisions of section 16 of the Sentencing and Penalties Decree 2009. However it is interconnected with the range of sentencing orders a court can make under section 15 of the Decree. I shall reproduce here both the sections for the sake of clarity.

Section 15 of the Sentencing and Penalties Decree:

(1} If a court finds a person guilty of an offence, it may, subject to any specific provision relating to the offence, and subject to the provisions of this Decree-

(a) record a conviction and order that the offender serve a term of imprisonment;

(b) record a conviction and order that the offender serve a term of imprisonment partly in custody and partly in the community;

(c) record a conviction and make a drug treatment order in accordance with regulations made under section 30;

(d) record a conviction and order that the offender serve a term of imprisonment that is wholly or partly suspended;

(e) with or without recording a conviction, make an order for community work to be undertaken in accordance with the Community Work Act 1994 or for a probation order under the Probation of Offenders Act [Cap. 22];

(f) with or without recording a conviction, order the offender to pay a fine;

(g) record a conviction and order the release of the offender on the adjournment of the hearing, and subject to the offender complying with certain conditions determined by the court;

(h) record a conviction and order the discharge of the offender;

(i) without recording a conviction, order the release of the offender on the adjournment of the hearing, and subject to the offender complying with certain conditions determined by the court;

(j} without recording a conviction, order the dismissal of the charge; or

(k) impose any other sentence or make any other order that is authorized under this Decree or any other Act.

(Sub-Sec. 2-5 not relevant for the purpose)

Section 16 of the Sentencing and Penalties Decree:

(1) In exercising its discretion whether or not to record a conviction, a court shall have regard to all the circumstances of the case, including­

(a) the nature of the offence;

(b) the character and past history of the offender; and

{c) the impact of a conviction on the offender's economic or social well-being, and on his or her employment prospects. (Sub-Sec.2 & 3 not relevant)

7. It is clear from the above two sections that not recording a conviction would limit the range of sentencing orders a court can make and as such shall be sparingly exercised. Thus it cannot be said that at any instance a court finds a ground under section 16 is satisfied a conviction should not be recorded. Certainly there should be a criteria to exercise the discretion of the court not to record a conviction largely owing, in my view, to the nature and seriousness of a charge among many other considerations.

The case of Botaki v State [2012] FJHC 1250; HAA015.2012 (1 August 2012) clearly highlights these necessary considerations to be in an application for not to record a conviction.

In this case Hon. Justice P. Madigan held thus;

"The operative word in this section is "discretion". Just because an offender will lose his job, and just because he will be affected economically does not mean that it is mandatory for a Magistrate to invoke the provisions of this Section. Where a Magistrate has exercised his discretion within the bounds of his power, that it would be in a very exceptional circumstances that an appellate court would interfere with that exercise.

8. This is particularly so in cases of Domestic Violence which this case is. The Domestic Violence Decree is clearly a Decree which aims to provide greater protection from Domestic Violence and it would not be in the spirit of this legislation to not record a conviction against a perpetrator.

9. The appellant has pleaded guilty to the offence and admits facts which go to the elements of the offence. The fact that he holds a career position as a Vice Principal is of no moment. This Court treats perpetrators alike be they poor or rich, of high or lowly status.

10. The appeal against conviction is dismissed."

In the highest sense of clarity the High Court of Fiji has ruled out 'domestic violence offences' from the range of offences a court can act without recording a conviction.

Thus your plea for not to record a conviction is hereby refused and accordingly the conviction is recorded on all counts.

8. Having considered the summery of facts in this case and the surrounding circumstances under which this incident had occurred, I now direct myself to consider the appropriate sentence on you under the guidelines on sentencing and the range of sentencing orders as set out in Sections 04 and 15 of the Sentencing and Penalties Decree 2009 in line with the objectives thereat having due consideration over the prescribed penalty, the tariff for each offence and the facts in mitigation.

9. The offence of 'Indecently Annoying Any Person' carries a penalty of imprisonment for 01year.

I shall now consider the Tariff for this offence. As far as the appellate court authorities are concerned there is no specific Tariff set for this offence. However, considering the cases of Kumar v. State [1995] FJHC 2; HAA003j. 1995b (7th February 1995) and Prakash v State [2013] FJHC 656; HAA27.2013 (4 December 2013),it can be held that a sentence from a 'bound-over' order to 09 months imprisonment term at the higher end, depending on the seriousness of the circumstances of the offending, is appropriate for this offence.

In view of the surrounding circumstances of this offence and the domestic relationship you shared with the Complainant, this court concludes that a prison term is warranted for this offence.

10. The maximum punishment for 'Assault Occasioning Actual Bodily Harm' is OS years of imprisonment.

The tariff for this offence; "...ranges from a suspended sentence where there is a degree of provocation and no weapon used, to 09 months imprisonment for the more serious case of assault" State v Anjula Devi (Criminal Case No. 04 of 1998 Lab) as cited with approval by Hon. Justice Goundar in Sereka v State (2008) FJHC 88,HAA027.2008 (25 April 2008). Hon. Justice Madigon held in State v Sikitora (2010) FJHC 466; HAC067.2010l(22 October 2010) that "The cases of Elizabeth Joseph v State (2004) HAA 03 of 2004 and State v Tevita Alati (2004) HAA 73 of 2004 establish a tariff 09 months to 12 months imprisonment, the severity of the wound being the determining factor in the starting point. However, sentences of 18 months imprisonment have been upheld in Domestic Violence cases Amasi Korovata v State (2006) HA 115 of 2006".

I further consider the recent case of Rakia v State [2013] FJHC 383; HAA10.2013 (9 August 2013), where his Lordship Justice P. Madigan held thus;

"The coming into effect of the Domestic Violence Decree 2009 has precluded the concept of reconciliation being relevant except perhaps, if genuine, to mitigation and even then to a very limited degree. In any event there is NO evidence of reconciliation in this affair. The whole purpose of the Domestic Violence Decree is to protect the victim in a domestic violence situation and it certainly would defeat that purpose if a Court were to send an accused with a known history of violence back into the "matrimonial" home, and thereby put the victim at risk of renewed violence."

Further his Lordship went on to hold,

"Counsel's reliance on pre-Domestic Violence case law with its often very reactionary and gender biased dicta on the roles of parties in a relationship cannot in this modern era be sustainable. Harsh sentences will continue to be meted out to perpetrators and protected persons will continue to be protected."

Further his Lordship went on to state;

"The tariff for this offence is, as the Magistrate says, from suspended sentence to 9 months but in a domestic violence context sentences of up to 18 months are in order." (Emphasis added)

11. The offence of 'Breach of Domestic Violence Restraining Order' carries a penalty of a fine of $1,000 and a term of imprisonment for 12 months (on a first offence).

In respect of this offence there's no set tariff. However in the case of Manakiwai v State [2014] FJHC 11; HAA27.2013 (28 January 2014), Hon. JusticeS. De Silva upheld a sentence of 12 months for a serious breach of a DVRO. (However it is to be noted that in this case the Accused was charged under Section 202 of the Crimes Decree No. 44 of 2009 for DISOBEDIENCE OF LAWFUL ORDER which was in fact a DVRO). It was held by Justice De. Silva in this case as follows; "The sentence for the 2nd charge to stand at 12 months as the appellant had seriously violated the DVRO within short period of time."

It is clear from the above passage that the Appellate courts of Fiji have identified this offence to attract serious consequences.

In reality this offence is always a form of extension of domestic violence that at some point of time was recorded with the enforcement authorities and preventive measures already taken by a court to stop the re-occurrence. As such any re-occurrence should naturally attract serious punishment. In this particular instance the violence is repeated against your wife. It is to be further noted that violence against women and children is a prevalent offence in our society and the Judiciary is expected to take an active role to extend protection to women and children against various forms of violence prevalent in the present day society.

In the event there is no set tariff, it is up to the sentencing court to consider the appropriate sentence owing to facts and circumstances of each case. However, it is an accepted principal that a tariff to any offence should be a period between the minimum and the maximum prescribed terms of imprisonment without falling on to either extremes.

Considering the fact that the alleged breach is not technical in nature and that it was in fact a repeat of physical violence this court is of the view that a prison term is warranted for this offence and having regard to the above legal background shall consider an imprisonment term between 02 months to 09 months.

12. Before moving on to consider the actual period of the sentence, it is to be noted here the appropriate manner in which the sentences in a case with multiple counts could be computed by a court, where similar or same aggravating and mitigating factors would apply to all counts.

In this regard, I adopt the view expressed by Hon. Justice P. Madigan in Maharaj v State [2011] FJHC 373;HAA014.2011(L) (7 July 2011) on deciding sentence in a case of multiple counts. His Lordship in this case noted;

"It is now accepted that a starting point is taken, adjusted for aggravating and mitigating features reaching a final sentence. This will be done on the more serious (or "base") offence and sentences for other offences will be made concurrent consecutive or partly concurrent to this "base". It is not current practice to add the same aggravating features to every offence that he is sentencing for as the Magistrate has done in this case with the theft offence. By doing so, it means that the convict is being punished twice or more for what the sentencing tribunal regards as aggravating features.

With the greatest respect to an otherwise meticulous and careful Magistrate, the now accepted way he could have approached this sentence is as follows:

Aggravated burglary: starting point 30 months, aggravating features add 6 months –

mitigating features deduct 3 months; time in remand deducts 5 months, giving a total of 28 months. A discount for early plea of guilty, 9 months, giving a final sentence to be served of 19 months.

Theft: starting point 5 months {Nothing else to adjust because that has been effected in the "base" sentence); concurrent to the 19 months." {Emphasis added)

13. I shall now consider the aggravating factors {if any) in these offences.

• Blatant breach of trust of the Complainant which she reposed on you as her husband.

• Unprovoked attack on Complainant.

• Inhuman and degrading nature of the attack.

Above facts in my view do aggravate the offences and as such should be treated as aggravating factors.

14. Court shall consider the following facts as submitted in the written submissions filed by the Legal Aid in relation to mitigation on sentence.

• Personal circumstances (No special circumstances that deserves credit)

• Lack of good judgment {It is questionable as to why in the first place this fact is submitted to be considered in mitigation. The submission goes on to state that 'this unfortunate brush is a result of some error of decision and for that he pleads that this Honorable Court will consider his lack of good judgment.' This in my view is clearly a perverse submission and an invitation to give legal acceptance to domestic violence on generalized terms. I do not wish to go much deeper with this fact but would certainly not consider this as mitigation on sentence.)

• Expressed remorse. It appears from the facts that you have apologized to the Complainant and had further expressed remorse to court. This fact will be considered in mitigation.

• Reconciliation. (There is a letter by Complainant attached to the written submissions on reconciliation. She was further present in court and informed that you had reconciled with her. However as per legal authorities cited above, reconciliation in domestic violence cases plays a limited role. In any event the court has to consider the genuineness of such reconciliation since there is always a higher possibility that the purported reconciliation could be due to domestic and economic pressure on the Complainants since the perpetrator is most of the time the sole income source for the family. In the above mentioned letter the Complainant has stated that she has reconciled and that you have asked for her forgiveness and claims that you are now a changed person. However, it further reveals that she is living with you and her in-laws with the two children. Further, that you are the sole breadwinner of the family and that she does not have any other financial support. Moreover that you had recently served 05 months on a previous conviction and as such the whole family had suffered a lot.

In my view it is clear from the above facts the real reason behind the reconciliation is actually the domestic and economic pressure on the Complainant and as such this court is not inclined to give much weight on this fact in mitigation)

• Cooperation with police. (This fact is misconceived since the Summary of Facts does not disclose any cooperation on your part. In fact you had to be first locked up in the cell till you become normal as you were drunk and at the time of the Caution Interview you had simply said you do not know what you have done since you were drunk. As such this fact does not constitute any mitigation.)

• Although in the written submissions case authorities on first offenders have been highlighted you are not a first offender and as such these authorities are not relevant.

• Though not mentioned in the submissions, you had been in remand for this offence from 16/11/2012 to 26/11/2012. As such this period is to be discounted from the sentence.

• The only other fact to be considered in mitigation is your Guilty Plea. Though not at your earliest you have saved the Complainant from giving evidence at a full hearing and the time and resources of court and state.

15. Court shall now work out your sentence considering all above facts and circumstances in line with the relevant law.

As the offence of Assault Causing Actual Bodily Harm is the more serious offence out of the three, this offence shall be treated as the 'base' offence and the court shall deal with the sentence for this offence first.

Having consideration over the surrounding circumstances of the offending, the nature and seriousness of the injuries caused and facts highlighted under section 4(3) of the Sentencing and Penalties Decree 2009, I select a starting point of 12 months on this offence.

To reflect the aggravating factors identified by court your sentence is enhanced by further 12 months bringing your sentence up to 24 months.

In view of the relevant mitigation factors as discussed above, a discount of 03 months is made to the sentence bringing it down to 21 months. The guilty plea is separately discounted by a further 06 months and the 10 days period in remand shall be reduced from this sentence and as such the final sentence arrived for this offence shall be 14 months and 20 days imprisonment.

16. For the offence of Indecently Annoying Any Person, I take a starting point of 06 months upon the surrounding circumstances of the offending and there shall be no further adjustments made since aggravating and mitigating factors have already being considered in the 'base' sentence.

As such the final sentence for this offence shall be 06 months imprisonment.

17. For the offence of Breach of Domestic Violence Restraining Order, I take 07 months imprisonment as the Starting point having due regard to the surrounding circumstances of the offending and the nature and seriousness of the breach. No further adjustments to be made as per the same reasons mentioned in the foregoing paragraph.

As such the final sentence for this offence shall be 07 months imprisonment.

18. Considering the 'totality' theory and the fact that all these offences have being committed in the same transaction, I order all sentences to run concurrent to each other.

Therefore the final effective sentence on all three counts shall be a 14 months and 20 days imprisonment term.

19. As per Sec.26 of the Sentencing and Penalties Decree, I do concede that this court has the jurisdiction to suspend your sentence since it is less than 02 years of imprisonment. Directing my mind on the guideline cases on suspension of sentences; DPP v Jolame Pita (1974) 20 FLR 5 and more recently DPP v Saviriano Radovu (1996) 42 FLR 76 and Deo v State (2005) FJCA 62, I now proceed to consider whether there are any special circumstances to justify a suspension of your sentence.

20. You are convicted and sentenced on serious offences. I reiterate my findings above on the seriousness of these offences in this regard. Moreover you have subjected your wife to renewed violence in an inhuman and degrading manner. As this court already stated vulnerable victims, especially in domestic violence cases, need special protection from offenders who continuously subject them to violence. As such, offences of this nature attracts deterrent punishment, "signifying that the court and the community denounce the commission of such offences"

However, I consider the fact revealed by the Complainant that there had not being any new incidents of violence from the time you have being with the Complainant after this offence. She had claimed that you are now a changed person. Yet as highlighted above, court has to exercise caution on what weight to be given on these facts since it is already ruled by court that the reconciliation of the Complainant in fact reflects domestic and economic pressure. But the fact that there were no other reported incidents of domestic violence is in fact a plus point on your behavioural change and should be encouraged.

I shall consider both these conflicting factors of the interest of the Complainant and the society at large and the interest of the Accused person when deciding on the issue of suspension of sentence.

22. Thus, these conflicting interests need to be balanced along with the interest of justice at large. In the case of State v Nadolo [2012] FJHC 1444; HAC143.10 (23 November 2012) Hon. Justice Priyantha Nawana J has stated thus;

"Section 4 of the Decree on 'Sentencing Guidelines has been founded on the jurisprudential principle of 'balancing competing interests' of the offender, the victim and the society at large. {State v Tilalevu {2010] FJHC 258 HAC 81 of 2010; 20.07.2010}

It is, therefore, of paramount importance for any sentence to reflect court's bounden duty of protecting the community and its unhesitant approach of denouncing the commission of the offence within the prescribed parameters under the law. This can be manifested only by deterring the offenders and others who tempt to commit crime."

23. Hon. Justice Priyantha Nawana J in State v Nadolo [2012] FJHC 1444; HAC143.10 (23

November 2012) (supra) further went on to say;

"In the circumstances, I am not inclined to suspend the sentences ordered in respect of the two charges totally. Instead, I am of the view that it would be expedient to award a partial suspension, as provided for under Section 26(1) of the Sentencing Decree, after taking into account that an opportunity for rehabilitation in the mainstream should be afforded to the accused who is in his youth."

24. I am therefore of the view that a part suspension of your sentence would lead to serve both ends of justice and punish you "to an extent and in a manner which is just in all the circumstances".

25. Thus you are hereby explained of the purpose and effect of a suspended sentence and further the consequences that would follow if you commit another offence during the period of suspension.

As such, I now suspend 06 months out of your sentence for a period of 03 years.

26. In the final outcome your sentence shall be one of 06 months imprisonment term suspended for 03 years and 08 months and 20 days imprisonment term to serve in custody.

27. Further, the final Domestic Violence Restraining order, on Standard Non Molestation Condition, that was issued in the case of 283/2011 dated 22/09/2011 shall remain in force and continue to apply until cancelled or varied by a competent court.

28. You have 28 days to Appeal.

Kashyapa Wickramasekara,

27/02/2015 Resident Magistrate.