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State v Kumar [2016] FJMC 68; Criminal Case 582.2016 (17 June 2016)

IN THE MAGISTRATES’ COURT OF FIJI
AT SUVA

Criminal Case No: - 582/2016

STATE

V

HEMANT KUMAR

For the Prosecution: Cpl Shaw

The Accused: In person

Date of Sentence : 17^th of June 2016

SENTENCE

1. HEMANT KUMAR, you pleaded guilty this morning to one count of Assault Occasioning Actual Bodily Harm contrary to section 275 of the Crimes Decree.
2. According to admitted summary of facts, on 11/03/2016 at Suva Bus Stand, you punched the complainant on her face. She is your ex-girl friend and received injuries from the assault as per medical report.
3. I am satisfied that your plea was unequivocal and convict you for this offence.
4. The maximum penalty for Assault Occasioning Actual Bodily Harm is 05 years imprisonment.
5. 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 9hs ionment or the more serious cases of assault .( In State v Anv Anju Anjula Devi Criminal Case No. 4 of 1998 Lab)
6. As for the starting point, the ntencuidelines states ates that 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.
7. Considering the gravity of offending, I select 06 months as the starting point for your sentence.
8. The victim is your ex-girl friend and therefore this falls under the domestic violence offence. Further this happened in public place. For these aggravating factors I add 03 months to reach 09 months imprisonment.
9. In your mitigation you said you are looking after your mother and working as a market vendor. The prosecution confirms that you have a clear record which is the only valid mitigating factor in this case. For that I deduct 02 months to reach 07 months imprisonment.
10. 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.
11. In this case you pleaded guilty only after the complainant has given evidence. Other witnesses were also present in the court. The purpose of giving discount for a guilty plea is to acknowledge the saving of court time and resources. In this case I do not find you deserve credit for your late plea.
12. Now your final sentence is 07 months imprisonment. Section 15 (3) of the Sentencing and Penalties Decree states that a prison sentence is to be regarded as the sanction of last resort.
13. And considering your past good behavior and for the purpose of reform this court suspends your 07 months imprisonment for 02 years.
14. If you commit any offences during next 02 years you can be charged under section 28 of the Sentencing and Penalties Decree.
15. For the safety of the victim from future violence, I also grant a permanent domestic violence restraining order with standard non molestation conditions.
16. 28 days to appeal
    

Shageeth Somaratne

Resident Magistrate