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State v Balenabuli [2015] FJMC 36; Criminal Case 570.2015 (17 February 2015)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA

Criminal Case No: - 570/2015

STATE

V

FITILE BALENABULI

WPC Kalara for the prosecution
The Accused in person

17th March 2015

SENTENCE

1. FITILE BALENABULI, 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.
   
2. You waived right to counsel and pleaded guilty for this charge on 16/03/2015 . According to the summary of facts after being informed that your daughter ( victim) was not listening to her grandmother and was playing whole day you got angry and with a piece of timber started hitting her causing injuries. Later you used the handle of a kitchen knife and hit her head causing injuries to her head also. After noticing these injuries the school teacher of the victim reported the matter to the police and you were arrested. You admitted these facts in the Court.
   
3. I am satisfied that your plea is unequivocal and convicts you for this offence.
   
4. I am mindful that since this is a domestic violence offence I have to consider the Section 4(3) of the Sentencing and Penalties Decree also in addition to other provisions in the decree . Section 4(3) provides:
   

In sentencing offenders for an offence involving domestic violence, a court must also have regard to –

(a) any special considerations relating to the physical, psychological or other characteristics of a victim of the offence, including –

• (i) the age of the victim;
• (ii) whether the victim was pregnant; and
• (iii) whether the victim suffered any disability;
  

(b) whether a child or children were present when the offence was committed, or were otherwise affected by it;

(c) the effect of the violence on the emotional, psychological and physical well being of a victim;

(d) the effect of the offence in terms of hardship, dislocation or other difficulties experienced by a victim;

(e) the conduct of the offender towards the victim since the offence, and any matter which indicates whether the offender –

• (i) accepts responsibility for the offence and its consequences;
• (ii) has taken steps to make amends to a victim, including action to minimize or address the negative impacts of the offence on a victim;
• (iii) may pose any further threat to a victim;
  

(f) evidence revealing the offender's –

• (i) attitude to the offence;
• (ii) intention to address the offending behavior; and
• (iii) likelihood of continuing to pose a threat to a victim; and
  

(g) Whether the offender has sought and received counseling or other assistance to address the offending behavior, or is willing to undertake such counseling or seek such assistance.

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)
   
9. There are number of aggravating factors in this case. Victim is your daughter and therefore this falls in to a domestic violence. She was 12 years old at that time. For your assault you used a timber and also a handle of a knife. You even hit her head which would have been dangerous to her.
   
10. In your mitigation you said you were remorseful, seeks forgiveness and married with 03 children. You admitted this offence in your caution statement. You have no previous convictions.
    
11. After considering the facts in this case 07 months as the starting point for your sentence. For the aggravating factors mentioned in above I add 07 months to reach 14 months imprisonment. For mitigating factors I deduct 04 months and for the early guilty plea I deduct 1/3 to reach 06 months imprisonment.
    
12. Considering the manner of committing this offence ( using timber and a knife), domestic nature of the offence as well as the child cruelty I do not think it is appropriate to suspend this sentence.
    
13. Accordingly you sentenced you to 06 months imprisonment for the offence of Assault Occasioning Actual Bodily Harm contrary to section 275 of the Crimes Decree No.44 of 2009.For the safety of the victim I also issue a permanent domestic violence order with standard non-molestation conditions.
    
14. 28 days to appeal
    

H.S.P.Somaratne
Resident Magistrate