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State v Artack [2016] FJMC 76; Criminal Case 117.2016 (5 June 2016)

IN THE MAGISTRATE’S COURT of Fiji

AT SUVA

Criminal Case No 117/16

STATE

-v-

NELSON DAVID VICTOR ARTACK

SENTENCE

INTRODUCTION AND CHARGE

1] The following charge was read out to you and understanding the contents you pleaded guilty to the same on your own free will. Accordingly you are convicted to the following charge.

ASSAULT CAUSING ACTUAL BODILY HARM: Contrary to Section 275 of the Crimes Decree No. 44 of 2009.

Particulars of Offence

NELSON DAVID VICTOR ARTACK on the 16th day of January 2016 at Lami in the Central Division assaulted NicolletteChangaiya thereby causing her actual bodily harm.

SUMMARY OF FACTS

2] Summary of facts revealed that on the 16th day of January at about 7am you punched the complainant who was your partner on forehead, on thighs and on her arm that caused her injuries.

MAXIMUM SENTENCE

3] Imprisonment for 5 years

TARIFF

4] It was held inSereka v State [2008] FJHC 88; HAA027.2008 (25 April 2008) 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 for the more serious cases of assault referring to the judgement in State v Anjula Devi, Criminal Case No. 04 of 1998 Lab.

AGGRAVATING FACTORS

5] The victim is your de facto wife . So that there is a domestic relationship between the parties

MITIGATING FACTORS

Following factors were mentioned as mitigating the sentence.

1. Early guilty plea
2. You have mentioned that you have reconciled which has not been confirmed by the victim or by the prosecution
3. Earn $250 per week

CONCLUSION

I shall now proceed to consider your sentence as consistent with the above mentioned factors.

I pick 6 months imprisonment as the starting point and increase 3 months for the aggravating factor that the victim is your partner. The domestic violence should be seriously dealt with since violence within the family targets gender weakness of women and it also affects the children. Accordingly your sentence now reaches 9 months.

As you have pleaded guilty at the first available opportunity, your sentence should be reduced by a third in view of the judgment in VeretarikiVetaukula v The State , High Court Crim App Case No: HAA057/07 following Hem Dutt v The State , FCA Crim App Case No: AAU 0066 of 2005. Accordingly your sentence becomes 6 months imprisonment.

The prosecution has reported no previous conviction during last 10 years period. You have mentioned that the matter is reconciled which has not been confirmed by the victim. You also have informed that you support the kids financially. The medical report of the complainant has not revealed any serious injuries. Considering all these mitigating factors the 9 months imprisonment is suspended for 2 years.

If you commit any offence punishable by prison sentence during the next 2years you can be charged under section 28 of the Sentencing and Penalties Decree.

In addition a permanent Domestic Violence Restraining Order is issued protecting the complainant with non-molestation conditions. Violation of this order could result in bringing charges against you under the Domestic Violence Decree 2009.

SUMMARY OF THE SENTENCE

9 months imprisonment that is suspended for 2 years

28 days to appeal

PRIYANTHA LIYANAGE

RESIDENT MAGISTRATE, SUVA

5/6/2016