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State v Manumanulaca [2018] FJMC 26; Criminal Case 26.2018 (12 March 2018)

IN THE MAGISTRATES’ COURT OF FIJI
AT VUNIDAWA

Criminal Case No: - 26/2018

STATE

V

SIKELI MANUMANULACA

For the prosecution: WPC Taitila

The accused: In person

Date of Sentence : 12^th of March 2018

SENTENCE

1. SIKELI MANUMANULACA, 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 and admitted the summary of facts presented by the prosecution.
3. According to the facts on 07/03/2018 after an argument with your wife about you giving the children a niece who was unsound mind, you punched her forehead. When she fell down you also kicked her causing multiple injuries on her face.
4. I am satisfied about your plea and convict you for this charge.
5. The maximum penalty for Assault Occasioning Actual Bodily Harm under the Crimes Act is 05 years imprisonment.
6. In Khan v State [2017] FJHC 746; HAA68.2017 (6 October 2017) his Lordship Justice Aruna Aluthge said:

“It was held in State v Tugalala [2008] FJHC 78; HAC025S.2008S (29 April 2008), that the tariff for this offence should range from an absolute or conditional discharge to 12 months’ imprisonment. As noted in earlier cases, Elizabeth Joseph v. The State [2004] HAA 030/04S and State v Tevita Alafi [2004] HAA073/04S, it is the extent of the injury which determines sentence. The use of a pen knife for instance, justifies a higher starting point. Where there has been a deliberate assault, causing hospitalization and with no reconciliation, a discharge is not appropriate. In domestic violence cases, sentences of 18 months’ imprisonment have been upheld in Amasai Korovata v. The State [2006] HAA 115/06S.”

7. In Matai v State [2018] FJHC 25; Criminal Appeal 108.2017Ltk (26 January 2018) his Lordship Justice Madigan said that the tariff for a domestic violence assault causing actual bodily harm is from 6 to 18 months imprisonment.
8. 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."

9. Considering the above judicial precedents and based on objective seriousness, I select 09 months as the starting point for your sentence.
10. The aggravating factor is you assaulted the head of the victim which is vulnerable place in the body and for that I add 03 months to reach 12 months imprisonment.
11. In mitigation this morning you submitted that you are 29 years old, married with 2 children, seeking forgiveness and reconciled.
12. I would first consider about this reconciliation submitted by the accused in his mitigation.
13. In Patel v State [2011] FJHC 669; HAA030.2011 (27 October 2011), Justice Madigan held:

“[8] This is a domestic violence offence and as such it cannot be reconciled. (Part III Section 3 (b) of Domestic Violence Decree). The appellant’s ground that the Magistrate did not allow for credit for reconciliation cannot be made out. The victim in this case cannot reconcile with the appellant in order to mitigate this offence. Nor should the Magistrate have allowed it to be a factor in his mitigation “list”. Reconciliation plays no part in a domestic violence offence either for or against an accused.”

14. In State v Kumar [2011] FJHC 341; HAA 020.2010 (9 June 2011), Justice Madigan held:
    

“A domestic violence offence which this obviously is cannot be reconciled and in any event the Court record notes that the victim did not want to reconcile. It is incumbent upon the tribunal or officer of the Court to have regard to the Domestic Violence Decree which came into force on the 1st of December 2009.The Decree was enacted to protect persons, men women and children, from abuse in domestic environment and if the Courts do not make findings and ruling within the spirit of the Decree, then that altruistic arm is thwarted.”

15. There are no evidence before me to show about this supposed reconciliation apart from the word of the accused. Even if there is I do not find it would be valid in this case considering the accused is the sole bread winner of the family.
16. Also the accused is not a first offender and hence not entitle for discounts for his past good behavior.
17. For other mitigating factors I deduct 03 months to reach 09 months imprisonment.
18. 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”.

19. The Court of Appeal said in Poate Rainima CA AAU0022 of 2012)

“It has always been accepted (though not by authoriaive judgment) that the “high water mark” of discount is one third for a plea willingly made at the earliest opportunity. This Court now adopts that principle to be first valid and to be applied in all future proceedings at first instance”.

20. In this case you pleaded guilty at the earliest opportunity and for that I deduct 1/3 to reach 06 months imprisonment.
21. Now I have to consider whether to suspend this sentence pursuant to section 26(2) (b) of the Sentencing and Penalties Act.
22. From you previous conviction list I note that 02/01/2015 you were given a suspended sentence from this court for similar offence. After noticing that there was a DVRO also issued in that case I inquired from you about that and you admitted the victim in that case was also your wife.
23. It appears that you have continue to subject your wife to violence even after being issued with a DVRO. Hence I find a custodial sentence is warranted now to protect her from future violence.
24. Accordingly I sentenced you to 06 months imprisonment for this charge. Since there is already a DVRO in favor of the victim from the previous case at this stage I do not find need to grant any new orders.
25. 28 days to appeal.

Shageeth Somaratne

Resident Magistrate