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State v Mebaniyaubula [2016] FJMC 53; Criminal Case 63.2016 (27 April 2016)

IN THE MAGISTRATES' COURT OF FIJI
AT SUVA

Criminal Case No: - 63/2016

STATE

V

JOSEFA MEBANIYAUBULA

For the Prosecution: Sgt.Suli
For the Accused: Ms.K.Vulimainadave (LAC)
Date of Sentence : 27th of April 2016

SENTENCE

1. JOSEFA MEBANIYAUBULA , 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 on 15/04/2016 and admitted that on 11/04/2016 you beat the complainant on her buttock with a horse pipe. You are her class teacher and said in your caution interview that you committed this to discipline the children.
   
3. The learned defence counsel is asking for a non-conviction based on your employment and said you are prepared to pay compensation to the victim.
   
4. 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).
   
5. You do not fall in to any of these categories and therefore I convict you for this offence.
   

The Law and the Tariff

6. The maximum penalty for Assault Occasioning Actual Bodily Harm is 05 years imprisonment.
   
7. 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."

8. In Koroivuki v. State [2013] FJCA 15; AAU 0018.2010 (5 March 2013) his Lordship Justice Suresh Chandra said:
   

"In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this stage. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff. If the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range."

9. Considering the gravity of offending, I select 05 months imprisonment as the starting point for your sentence.
   

Aggravating factors

10. I consider following as aggravating factors:
    
    1. Victim is 07 years old;
    2. You used a horse pipe .
       
11. For these aggravating factors I add 03 months to reach 08 months imprisonment.
    

Mitigating factors

12. The learned defence counsel submitted comprehensive written mitigation with character references and I take in to consideration following:
    
    1. 51 years old married with children;
    2. More than 20 years' experience as a teacher;
    100. First offender;
    4. Willing to pay compensation.
       
13. For these mitigating factors I deduct 02 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 Guilty Plea 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. You pleaded guilty on the first day and therefore giving full credit I deduct 1/3 to reach 04 months imprisonment.
    
17. Now I have to decide whether to suspend this sentence. What you have done on that day falls in to child cruelty as well corporal punishment which has been prohibited in schools in this country presently. As a teacher with considerable experience you should have been aware that there are other methods to discipline students instead to using these outdated practices.
    
18. In your character references you have been described as a responsible, hardworking person with a proven track record and I have no reason to doubt them. Further your counsel has informed this court that presently you have been suspended from the work without pay and there may be a possibility that you would face some disciplinary inquiry also. Therefore I believe you have suffered enough and non-custodial sentence is appropriate in this case.
    
19. Accordingly I suspend your 04 months imprisonment to 01 year allowing you a chance to reform. If you commit any offences during next 01 year you can be charged under section 28 of the Sentencing and Penalties Decree.
    
20. 28 days to appeal.
    

Shageeth Somaratne
Resident Magistrate