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State v McComber [2016] FJMC 37; Criminal Case 14.2016 (17 March 2016)

IN THE MAGISTRATES' COURT OF FIJI
AT TAVEUNI

Criminal Case No: - 14/2016

STATE

V

MERE MAMA MCCOMBER

For the Prosecution: WPC Lani
For the Accused: Mr.Inia Rakaria(LAC)
Date of Sentence : 17th of March 2016

SENTENCE

1. MERE MAMA MCCOMBER , you were charged with one count of Assault Occasioning Actual Bodily Harm contrary to section 275 of the Crimes Decree No.44 of 2009 and one count of Indecently Annoying Person contrary to section 213(1) of the Crimes Decree No 44 of 2009.
   
2. You pleaded guilty this morning and also admitted the summary of facts. According to the facts on 29/01/2016 after an argument with the victim about her affair with your husband you assaulted her and also swore at her. The victim is related to you.
   
3. In this case the learned defence counsel is asking for a non-conviction based on your employment. But considering the nature of offences as well as the relationship I believe conviction has to be entered.
   
4. Therefore I convict you for both counts.
   

The Law and the Tariff

5. The maximum penalty for Assault Occasioning Actual Bodily Harm is 05 years imprisonment.
   
6. 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.
   
7. As for the starting point the UK Sentencing Guidelines states that offences committed in domestic context should be regarded as being no less serious than offences committed in a non-domestic context. Therefore the starting point should be same irrespective of whether the parties are known to each other.
   
8. For the offence of Annoying Person the penalty is 01 year imprisonment.
   
9. Considering the gravity of offending I select 06 months as the starting point for the 1st count (AOABH).
   

Aggravating Factors

10. In UK Guidelines following are considered as aggravating factors in domestic violence cases:
    
    1. Abuse of trust and abuse of power;
       
    2. Victim is particularly vulnerable;
       
    100. Impact on children;
         
    4. Using contact arrangements with a child to instigate an offence;
       
    5. A proven history of violence or threats by the offender in a domestic setting;
       
    6. history of disobedience to court orders;
       
    7. Victim forced to leave home .
       
11. When sentencing for a domestic violence a court in Fiji can consider the above aggravating factors and any other factors that would further aggravate the offence.
    
12. In this case only factor I find is the relationship of parties and for that I add 03 months to reach 09 months imprisonment.
    

Mitigating Factors

13. In UK Guidelines the positive good character and provocation are considered as mitigating factors. In this case there seems to be provocation from the complainant. For this and your past good behavior I deduct 03 months to reach 06 months imprisonment.
    

Guilty Plea

14. In Naikelekevesi v The State Criminal Appeal No AAU 0061 of 2007 it was observed:
    

"...where there is a guilty plea, this should be discounted for separately from the mitigating factors in a case".

15. In UK sentencing guidelines of 2007 it has been held that when an accused pleaded guilty at the first available opportunity the reduction is 1/3 and after a trial date is set 1/4 recommended. But when an accused pleaded guilty at the door of the court or after the trial has started he maybe entitle for only 1/10 discount.
    
16. For pleading guilty at the first available opportunity I deduct 1/3 to reach 04 months imprisonment. Considering all the factors I sentenced you to 03 months imprisonment for the Annoying Person. As these were committed in same transaction I order these to be concurrent.
    
17. Having considered all the mitigating factors I suspend these sentences to 01 year allowing you the chance to reform.
    
18. If you commit any offence during next 01 year you can be charged under section 28 of the Sentencing and Penalties Decree.
    
19. For the safety of the complainant I also grant a permanent domestic violence restraining order with standard non-molestation conditions.
    

8. 28 days to appeal
   

Shageeth Somaratne
Resident Magistrate