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State v Kumar - Sentence [2018] FJMC 125; Criminal Case 215 of 2018 (11 September 2018)

IN THE MAGISTRATES COURT OF FIJI AT TAVUA
CRIMINAL JURISDICTION

Criminal Case No: 215 - 2018
STATE
-v-
SHANIL KUMAR

For Prosecution : Sgt Samy [ Police Prosecution ]
For The Defendant : Ms Henao [ Legal Aid Commission ]

Date of Sentence : 11^th day of September 2018

SENTENCE

BACKGROUND

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

Statement of Offence

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

Particulars of Offence

SHANIL KUMAR on the 14^th day of July, 2018 at Mataniwai, Tavua in the Western Division assaulted one RAJNEETA DHARSHNI 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 29 year old wife. You only admitted pushing her and slapping her mouth.
   
5. When you were interviewed by police the following day after the matter was reported, you told police that you had returned from drinking in town with your friends and you woke your wife up to make some food. She said that she was not your servant and was asking you who you were drinking with. You said that she hit your leg with her hand. You got angry, stood up and you slapped her two times on the face. You said that your wife then went to the sitting room and said some more things and threw here phone on the floor. You went and slapped her again on her face. She took the baby and said that she was going to report against you. You said that you were drunk and can’t recall everything.
   
6. When your wife was medically examined about 2 hours later, the medical officer amongst other things, observed that your wife had a cut to her lower lip and was experiencing pain there, she also had tenderness to the right side of her head. In addition to the physical observation, your wife was crying and was in distress when describing the events.
   
7. Your wife was also present in court on the day you pleaded guilty. She accepts that you have apologized to her. She denied though that she told police although her police statement was identified by her in court, that she had been punched by you. She said that you only slapped her. Your wife tells me that both of you have ‘settled’.
   
8. You have been in custody or remand for 2 days because of the case.
   
9. You are a first offender.
   
10. In your mitigation, counsel submitted that you are 27 years old. You have a 4 month year old child with the victim. You are the sole breadwinner. You promise not to re-offend that you were drunk at the time.
    

LAW

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

TARIFF

12. 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

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

AGGRAVATING FEATURE

14. This was a domestic situation.
    
15. This was your wife who I have seen is far less physically imposing than you. Restraint and control was expected from you.
    
16. Your interview reveals that your mother was at home too and she had told you to go to bed.
    
17. Your violence was witnessed by your other family members.
    
18. You hit your wife several times.
    
19. Whether it was punches or slaps, your assault was enough to cause tenderness to the right side of her head. Your violence was excessive in light of the circumstance.
    
20. Your sentence is increased by 3 months because of all these.
    
21. Your current sentence is 7 months imprisonment.
    

MITIGATION

22. I don’t place any weight on any reconciliation. The victim is dependent on you emotionally and the family depends on you financially.
    
23. I accept though that you have apologized to her and that you are remorseful.
    
24. You have cooperated with police.
    
25. I accept that some words must have been exchanged between you and your wife and some of her actions might have been provocative. 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.
    
26. Some consideration must also be taken for your past good character as well.
    
27. You look after the family.
    
28. Although time in remand or custody is not necessarily mitigation, I will consider it here as it was only 2 days.
    
29. Altogether, your sentence is reduced by 2 months imprisonment.
    
30. Your current sentence is 5 months imprisonment.
    

GUILTY PLEA

31. You sentence is further reduced by 2 months for your guilty plea.
    
32. Your interim sentence stands at 3 months imprisonment.
    

SUSPENSION

33. I can suspend your 3 month imprisonment term either in whole or in part pursuant to section 26 ( 2 ) ( b ) of the Sentencing and Penalties Act 2009.
    
34. 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.
    
35. I am only inclined to suspend your sentence in part.
    
36. This is especially to reflect deterrence, to punish you and to allow you return back to society to support your family.
    

FINAL SENTENCE

37. Your 3 month imprisonment term will be partially suspended.
    
38. You will serve 1 week or 7 days imprisonment immediately.
    
39. The remaining 2 months and 21 days [ 3 weeks ] imprisonment, will be suspended for the next 3 years.
    
40. Commit any other offence in the next 3 years and this suspended term may be activated.
    

[suspended term explained to the defendant]

41. 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 10^th day of August 20187 in this case will be made final. This is to protect your wife.
    
42. Breach any condition of this DVRO and you may be charged with a separate offence of breaching a DVRO.
    

[ explained to the defendant ]

43. I also order that the $200 cash bail which was provided as part of your bail condition be forfeited to the State as part of your sentence.
    
44. 28 days to appeal.
    

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

Dated at Tavua this 11^th day of September, 2018.