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State v Moceisuva [2016] FJMC 206; Criminal Case 1655.2016 (19 October 2016)

IN THE MAGISTRATES’ COURT OF FIJI
AT SUVA

Criminal Case No: - 1655/2016

STATE

V

UNASI MOCEISUVA

For the Prosecution: Cpl Shaw

For the Accused: Ms.L.Jakson

Date of Sentence : 19^th of October 2016

SENTENCE

1. UNASI MOCEISUVA, you were charged with one count of Assault Occasioning Actual Bodily Harm contrary to section 275 of the Crimes Decree No 44 of 2009.
2. You pleaded guilty for this charge this morning and admitted the summary of facts on presented by the prosecution.
3. According to the facts on 04/09/2016 at around 4.30am whilst the complainant was drinking with her friend in a night club, you approached her and poured the drinks on her. When the complainant asked you the reason there was an argument which resulted in you punching the complainant on her face. The medical report shows that there were superficial soft tissue damages to the left eye and cheek bone of the victim.
4. The learned defence counsel in her comprehensive written mitigation is asking for a non-conviction based on the minor injuries suffered by the victim, there seems to provocation by the complainant, the accused willingness to reconcile and her medical conditions.
5. It has been held that non-conviction would be given only for morally blameless people or technical breaches (State v Nayacalagilagi (2009) FJHC 73; HAC165.2007 (17th March 2009), Guidelines by his Lordship Chief Justice Gates in State v Batiratu [2012] FJHC 864; HAR001.2012 (13 February 2012). You do not fall in to any of these categories
6. . Further the article 26 of the 2013 Constitution states that every person is equal before the law. Therefore there should not be special treatment for you when charged with this offence that would not be applicable to ordinary person. Accordingly I convict you for this offence.
7. The maximum penalty for Assault Occasioning Actual Bodily Harm is 05 years imprisonment.
8. In State v Tugalala [2008] FJHC 78; HAC025S.2008S (29 April 2008) her Ladyship justice Shameem said :

“The tariff for this offence appears to range from an absolute or conditional discharge to 12 months imprisonment.”

9. Considering the gravity of offending, I select 06 months as the starting point for your sentence.
10. I do not find any aggravating factors and would not enhance your sentence.
11. In her mitigation your counsel submitted the following grounds :
    1. You are 49 years old;
    2. Married with 5 children;
    100. Since your husband is overseas you are looking after children;
    4. First offender;
    5. Cooperated with the police.
12. For these mitigating factors I deduct 03 months to reach 03 months imprisonment.
13. After getting proper legal advice you pleaded guilty and for that I deduct 1/3 to reach 02 months imprisonment.
14. Now I have to consider whether to suspend this sentence. Considering your past good behavior, early guilty plea, family back ground I believe a non-custodial sentence is appropriate in this case.
15. Hence I suspend this 04 months imprisonment to 01 year.
16. If you commit any offence during next 01 year you can be charged under section 28 of the Sentencing and Penalties Decree.
17. 28 days to appeal.
    

Shageeth Somaratne

Resident Magistrate