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State v Namudu - Sentence [2018] FJMC 110; Criminal Case 204 of 2017 (20 July 2018)

IN THE MAGISTRATES COURT OF FIJI AT TAVUA
CRIMINAL JURISDICTION

Criminal Case No: 204 – 2017
Criminal Case No: 281 - 2017
Criminal Case No: 195 – 18

STATE
-v-
VILIAME NAMUDU

For Prosecution: Inspector Lenaitasi [ Police Prosecution ]

Accused: In person, waived right to counsel

Date of Sentence: 20^th day of July 2018

SENTENCE

BACKGROUND

1. VILIAME NAMUDU, you have pleaded guilty in 3 separate cases before me.
   
2. This sentence is for all your 3 matters.
   
3. The most serious of your 3 cases is Criminal File no. 204 – 17.
   
4. In that case, you pleaded guilty to assaulting your 21 year old wife and causing her actual bodily harm which is contrary to section 275 of the Crimes Act 2009. You struck her with a fishing spear during an argument. The spear is about a metre long or an arm’s length. You hit your wife on the head and leg. Even 2 days after you hit her, injuries were still observed on your wife. The observations of the medical officer recorded in your wife’s medical report shows that the occipital part or the back of her head was swelling and it was tender. Her right leg too was swelling.
   
5. The other 2 remaining files involves your guilty plea to absconding bail contrary to section 25 ( 1 ) ( c ) and 26 ( 1 ) of the Bail Act 2002. They are for your failures on 2 separate occasions, to appear in court after being bailed in the case outlined above or the case relating to you assaulting your wife.
   
6. In Criminal File no. 204 – 17, you failed to appear in court when your assault case was called on the 30^th of October 2017.
   
7. You tell me that you came late as you went to Lautoka to sell cassava.
   
8. In Criminal File no. 195 – 18, you failed to appear in court when your assault case was called on the 1^st of May 2018.
   
9. You tell me that you changed your address which you had provided in your bail form and went to another village and slept over there during the celebration of your son’s first birthday. Due to bad weather you could not return in time and missed your case.
   
10. I have found you guilty in all 3 cases after being satisfied that your guilty plea was voluntary and the facts supported them.
    
11. You are a first offender.
    
12. In your assault case, you were granted bail on the first day you were produced which is on the 18^th of August 2017. You were then remanded in custody on the 13^th of June 2018. You have been in remand since. The time you spent in remand in relation to your assault case is approximately 35 days.
    
13. In your absconding file Criminal File no. 281 – 17. You were bailed on the 17^th of November 2017 after providing a surety. You were then remanded in custody on the 13^th of June 2018. You have been in remand ever since. The time you spent in remand in relation to this case is approximately 41 days.
    
14. In your other absconding file Criminal File no. 195 – 18, you have been in remand since 13^th June 2018 which is approximately 35 days.
    
15. In your mitigation you said that you have sought forgiveness from your wife who has accepted your apology. The prosecution does not dispute this. You say that your wife has returned to her village after what you did. You have a son who is 1 year and 9 months old.
    

LAW

16. The maximum sentence that is imposable by law for the offence of assault occasioning actual bodily harm is up to 5 years imprisonment.
    
17. For absconding bail, the maximum imposable is a $2,000 fine and 12 months imprisonment.
    

TARIFF

18. The sentencing tariff for assault occasioning actual bodily harm ranges between a suspended sentence to 9 months imprisonment depending on the degree of provocation and whether any weapon was used [ see for example Randipni Singh v The State HAA 13 of 2016 ( 17^th June 2016 ).
    
19. There is no set tariff for absconding bail.
    

STARTING POINT – Assault Causing Actual Bodily Harm

20. Considering the circumstance of the assault case, a 5 month imprisonment term is selected as a starting point.
    

AGGRAVATING FEATURE – Assault Causing Actual Bodily Harm

21. You used a weapon.
    
22. I find no provocation for you to have reacted in the way you did.
    
23. You hit your wife more than once and your hit her on her head.
    
24. Your sentence is increased by 3 months because of all these.
    
25. Your current sentence is 8 months imprisonment.
    

MITIGATION – Assault Causing Actual Bodily Harm

26. You sounded genuine to me when you were giving your mitigation.
    
27. Some consideration must also be taken for your past good character as well.
    
28. I accept that you have reconciled with your wife.
    
29. I reduce your sentence by 1 month because of these.
    
30. Your current sentence is 7 months imprisonment.
    

GUILTY PLEA – Assault Causing Actual Bodily Harm

31. Your sentence is further reduced by 2 months for your guilty plea.
    
32. Your sentence is 5 months imprisonment which is equivalent to 140 days imprisonment.
    

TIME IN CUSTODY – Assault Causing Actual Bodily Harm

33. I reduce your sentence further by 35 days for the time you have spent in custody pending the determination of this case.
    
34. Your current sentence for hitting your wife and causing her harm is 105 days which is 3 months and 3 weeks.
    

SUSPENSION - Assault Causing Actual Bodily Harm

35. I can suspend your imprisonment term either in whole or in part pursuant to section 26 ( 2 ) ( b ) of the Sentencing and Penalties Act 2009.
    
36. I’m inclined to suspend your sentence in part largely because you have spent over a month in custody and that you must face some consequence for also absconding bail.
    
37. Out of the 105 days therefore, you will serve another 6 days in prison for hitting your wife. This will bring the total number of days you have been deprived of your liberty to 45 days.
    
38. The remaining 99 days or 3 months and 2 weeks imprisonment is suspended for the next 3 years.
    
39. I warn you, if you commit any other offence in the next 3 years, the remaining 99 days imprisonment may be activated.
    

SENTENCE FOR ABSCONDING

40. I will take the 41 days you have been remanded in File no. 281 – 17 as your sentence in that case. It should be considered as being served and will be concurrent to your sentence in your assault case.
    
41. I will take the 35 days you have been remanded in File no. 195 – 18 as your sentence in that case and I will consider your sentence in that case served too. It should be considered as concurrent to your sentence in your assault case and your other case of absconding.
    

SUMMARY

43. Overall, you only have to serve 6 more days in prison and then you can be released.
    
44. In addition, I will order that the interim Domestic Violence Restraining Order [DVRO] with standard non-molestation conditions which was imposed on you earlier on the 18^th of August 2017 in this case will be made final. This is to protect your wife.
    

[ Final DVRO explained to the defendant ]

45. 28 days to appeal.

.....................................
Lisiate T.V. Fotofili
Resident Magistrate

Dated at Tavua this 20^th day of July, 2018.