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State v Ranuqanuqa [2017] FJMC 25; Criminal Case 115.2017 (23 February 2017)

IN THE MAGISTRATES’ COURT OF FIJI
AT SUVA

Criminal Case No: - 115/2017

STATE

V

JOELI RANUQANUQA

For the Prosecution: Cpl Shaw

The accused: In person

Date of Sentence : 23^rd of February 2017

SENTENCE

1. JOELI RANUQANUQA , 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 Breach of Domestic Order contrary to section 77(1) (a) of the Domestic Violence Decree of 2009.
2. You pleaded guilty for this charge and admitted on 29/01/2017 after accusing your wife about some missing monies, assaulting her. You also breached the DVRO issued in favor of the complainant by the Family Court through your action.
3. I am satisfied that your plea was made voluntarily and unequivocal. Accordingly I convict you for this charge.
4. The maximum penalty for Assault Occasioning Actual Bodily Harm is 05 years imprisonment.
5. 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.”

6. For Breaching a DVRO the prescribed penalty is $1000 fine and a 12 months imprisonment. There is no tariff for this offence.
7. In Laisiasa Koroivuki v the State [2013] FJCA 15; AAU0018.2010 (5 March 2013) his Lordship Justice Goundar 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 nature of offending and your culpability, I select 06 months as the starting point for the Assault count which is the base 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. In this case I find the breach of trust and the relationship of parties as aggravating factors and enhance your sentence by 06 months to reach 12months imprisonment.
13. In UK Guidelines the positive good character and provocation are considered as mitigating factors.
14. You are not a first offender and hence not entitle for discounts for your character.
15. In your written mitigation you submitted that you are married with 2 children who are attending school. You are remorseful and seeking forgiveness from the court. For these I deduct 03 to reach 09 months imprisonment.
16. 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”.

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 06 months imprisonment.
19. Considering all the circumstances I sentenced you to 03 months imprisonment for Breach of DVRO to be concurrent.
20. You are a serving prisoner and hence suspending this sentence would not arise. Accordingly I sentenced you to 06 months imprisonment to be concurrent with your present sentence.
21. 28 days to appeal.
    

Shageeth Somaratne

Resident Magistrate