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State v Banawa - Sentence [2017] FJMC 101; Criminal Case 69.2017 (11 August 2017)

IN THE MAGISTRATES’ COURT OF FIJI
AT VUNIDAWA

Criminal Case No: -69/2017

STATE

V

VASONI BANAWA

For the Prosecution: Sgt.Rao

The accused: In person

Date of Sentence : 11^th of August 2017

SENTENCE

1. VASONI BANAWA , you were charged with one count of Assault Occasioning Actual Bodily Harm contrary to section 275 of the Crimes Act No 44 of 2009(“Crimes Act”).
2. You pleaded guilty for this charge and also admitted the summary of facts presented by the prosecution.
3. According to the summary of facts you were staying in de facto relationship with the victim for last 06 years. She is 03 months pregnant at the time of this incident and got 03 children also. On 31^st July 2017 when the victim told you to leave the leftover food for the children, you got angry and punched her head and back. You also hit her with bamboo stick and a guava stick causing her injuries.
4. I am satisfied with your plea and convict you for this charge.
5. The maximum penalty for this offence under the Crimes Act is 05 years imprisonment.
6. 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.”

7. In Laisiasa Koroivuki v the State [2013] FJCA 15; AAU0018.2010 (5 March 2013) the Court of Appeal discussed the guiding principles for determining the starting point in sentencing and observed :

"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."

8. 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.
9. Considering the objective seriousness, I select 04 months as the starting point for your sentence.
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. Further the court must consider the section 4(3) of the Sentencing and Penalties Act also in domestic violence offences.
13. In this case I find the breach of trust; the victim was 03 months pregnant and using bamboo and guava sticks as aggravating this offence and enhances your sentence by 06 months to reach 10 months imprisonment.
14. In UK Guidelines the positive good character and provocation are considered as mitigating factors.
15. In mitigation you submitted the following :
    1. 33 years old;
    2. Married with 3 children;
    100. Farmer.
    4. First offender.
16. For the above mitigating factors, I deduct 04 months to reach 06 months imprisonment.
17. 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.
18. You pleaded guilty at the earliest opportunity and for that I deduct 1/3 to reach 04 months imprisonment.
19. Now I have to consider whether to suspend this sentence pursuant to section 26(2) (b) of the Sentencing and Penalties Act.
20. You argued with partner when she asked you to leave the food for your children. Being unsatisfied with her behavior, you assaulted her mercilessly even disregarding that she was 03 months pregnant and carrying your child in her womb. Hence a custodial sentence is warranted to denounce your behavior and deter these incidents from happening in future.
21. VASONI BANAWA , you are sentenced to 04months imprisonment for this charge.
22. For the safety of the victim, I also grant a permanent domestic violence restraining order with standard non-molestation conditions.
23. 28 days to appeal.
    

Shageeth Somaratne

Resident Magistrate