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State v Ilsad - Sentence [2018] FJMC 121; Criminal Case 186 of 2017 (24 August 2018)

IN THE MAGISTRATES COURT OF FIJI AT TAVUA
CRIMINAL JURISDICTION

Criminal Case No: 186 - 2017
STATE
-v-
MOHAMMED ILSAD

For Prosecution: Sgt Samy [ Police Prosecution ]

Accused: Mr Yunus M.

Date of Sentence: 24^th day of August 2018

SENTENCE

BACKGROUND

1. MOHAMMED ILSAD, you are here to be sentenced upon pleading guilty to the following charge:
   

Statement of Offence

ASSAULT OCASSIONING ACTUAL BODILY HARM: Contrary to section 275 of the Crimes Act No: 44 of 2009.

Particulars of Offence

MOHAMMED ILSAD on the 22^nd day of July, 2017 at Maqere, Tavua in the Western Division assaulted one RENAZ BEGUM thereby causing her actual bodily harm.

2. I am satisfied that your guilty plea to the charge is voluntary and that you understand the consequence of your plea.
   
3. After having admitted the facts proposed by the prosecution and having heard you, I have found you guilty accordingly.
   
4. The victim here is your 32 year old wife. You admitted the facts that you slapped her on her face without any reason. Your 3 year old daughter was in the same bedroom at the time.
   
5. In your interview with the police, you denied slapping your wife. You said that you only ‘touched’ her on her face. You said that you were not happy about her having eloped with a man before and that she was not looking after the children well.
   
6. When your wife was medically examined a day later after you slapped her, there was no visible injury but she was experiencing pain to her left ear.
   
7. Your wife was also present in court on the day you pleaded guilty. Both of you are still together. Unsurprisingly as we see when victims of violence reflect on the incident, she blames herself even though you slapped her. She said that she talked back to you and was suggesting that it was her fault and not yours why the incident took place. She says that the children were at home at the time. She has forgiven you.
   
8. You have been in police custody for 1 night and 1 day in police custody.
   
9. In addition, you have been in remand for 11 days.
   
10. Overall, the time you have spent in custody or remand is approximately 12 days.
    
11. You are a first offender.
    
12. In your mitigation, counsel submitted on your behalf that you have children to support. The youngest is 4 days old. You are the sole breadwinner.
    

LAW

13. The maximum sentence that is imposable by law for the offence of assault occasioning actual bodily harm is up to 5 years imprisonment.
    

TARIFF

14. 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 ).
    

STARTING POINT

15. Considering the circumstance of your case, a 4 month imprisonment term is selected as a starting point.
    

AGGRAVATING FEATURE

16. I’m inclined to accept that this happened in the presence of your children and your children were awake. You when giving your mitigation and in your interview with the police, you admit this fact.
    
17. You also assaulted your partner. Trust, respect and restraint was expected and required from you. You failed.
    
18. Your sentence is increased by 2 months because of all these.
    
19. Your current sentence is 6 months imprisonment.
    

MITIGATION

20. I don’t place any weight on any reconciliation. The victim is dependent on you emotionally and the family depends on you financially. What other option does the victim have but to accept you back?
    
21. I don’t accept that you cooperated fully with the police. Your explanation that you did not slap her but only touched her is bizarre. It must have been a strong touch then [ which is essentially a slap ] in-order to cause her pain lasting even until the following day when she went for her medical examination. You will receive no reduction in your sentence for cooperation with the police.
    
22. I accept that some words must have been exchanged. This still does not give you a license to have done what you did. However, the atmosphere and the passion existing at the time will be taken into account as part of your mitigation.
    
23. Some consideration must also be taken for your past good character as well.
    
24. You look after the family.
    
25. Altogether, your sentence is reduced by 2 months imprisonment.
    
26. Your current sentence is 6 months imprisonment.
    

TIME IN CUSTODY or REMAND

27. I further reduce your sentence by 2 weeks for time in custody or remand.
    
28. Your current sentence is 5 months and 2 weeks imprisonment.
    

GUILTY PLEA

29. You sentence is further reduced by 2 months for your guilty plea.
    
30. Your interim sentence stands at 3 months and 2 weeks imprisonment.
    

SUSPENSION

31. I can suspend your 5 months imprisonment term either in whole or in part pursuant to section 26 ( 2 ) ( b ) of the Sentencing and Penalties Act 2009.
    
32. I also take into account the factors outlined in section 4 of the Sentencing and Penalties Act 2009 when deciding whether or not to suspend your sentence.
    
33. If you had not been in remand for approximately 2 weeks, I would have imposed an immediate short sharp custodial sentence on you. Domestic violence cannot be tolerated.
    
34. I am inclined to suspend your sentence in whole therefore.
    

FINAL SENTENCE

35. Your 3 months and 2 weeks imprisonment term will be wholly suspended. It will be suspended for the next 3 years.
    
36. Commit any other offence in the next 3 years and this suspended term may be activated.
    

[suspended term explained to the defendant]

37. In addition, I will order that the interim Domestic Violence Restraining Order [DVRO] with standard non-molestation and non-contact conditions which was imposed on you earlier on the 7^th day of August 2017 in this case will be made final. This is to protect your wife.
    
38. Breach any condition of this DVRO and you may be charged with a separate offence of breaching a DVRO.
    

[ explained to the defendant ]

39. 28 days to appeal.

.....................................
Lisiate T.V. Fotofili
Resident Magistrate
Dated at Tavua this 24^th day of August, 2018.