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State v Nausarawa [2020] FJMC 59; Criminal Case 253 of 2019 (18 February 2020)

IN THE MAGISTRATES’ COURT OF FIJI
AT TAVUA
CRIMINAL JURISDICTION

Criminal Case No: 253 - 2019
STATE
-v-
PAULIASI NAUSARAWA

Before : RM Fotofili L.

For Prosecution : Inspector Naidu C. [ Police Prosecution ]

Accused : Mr. Samy A. [ Legal Aid Commission ]

Date of Sentence : 18^th February 2020

SENTENCE

BACKGROUND

1. PAULIASI NAUSARAWA, you have pleaded guilty to the following charge:
   

Statement of Offence

ASSAULT OCASSIONING ACTUAL BODILY HARM: Contrary to section 275 of the Crimes Act of 2009.

Particulars of Offence

PAULIASI NAUSARAWA on the 2^nd day of November, 2019 at Nasomo, Vatukoula in the Western Division assaulted ESETA NATURI whereby occasioning her actual bodily harm.

2. I am satisfied that your guilty plea and admission in court is voluntary and that you understand the consequences. The evidence tendered in support of your admission also supports your guilty plea.
   
3. I find you guilty and convict you of the charge.
   
4. The victim here your 21 year old wife. An argument arose between the two of you about a new blanket that was provided during a family function or ‘Tevutevu’. During the heated argument, you hit your wife with a piece of firewood on her left thigh. You tried hitting her again and she defended herself and this time the firewood landed on her hand. You punched her body four times too.
   
5. Your wife, the victim was medically examined about a day later after your violence. Amongst other things, the medical officer observed that the left palm of her hand was bruised and a larger bruising was present on her left thigh.
   
6. The matter was reported and you were arrested and then interviewed under caution by police. You admitted that you punched your wife on her hands and leg. You also admitted hitting her with a stick.
   
7. You are a first offender.
   
8. You have not spent any time in remand.
   
9. You are 26 years old. You are a farmer. You have a 2 year old daughter. You are the sole breadwinner. You have sought forgiveness from the victim. You have spent 1 night in police custody. This was done in the spur of the moment as you could not control yourself. You seek a non-custodial sentence.
   
10. Your wife was present in court and verifies that you have apologized to her. She even blames herself for what happened, which is not uncommon for victim’s in her position.
    
11. You must know that it is not her fault. Disagreement does not equal violence.
    

LAW

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

TARIFF

13. The sentencing tariff for assault occasioning actual bodily harm ranges between a suspended sentence and for more serious cases to 9 months imprisonment depending on the degree of provocation and whether any weapon was used [ see for example State v Kalouteretere - Sentence [ 2018 ] FJHC 845; HAC 270. 2018 ( 12 September 2018 ).
    

STARTING POINT

14. Considering the objective seriousness of the offence, a 4 month imprisonment term is selected as a starting point.
    

AGGRAVATING FEATURES

15. The victim was your wife or a domestic relationship existed.
    
16. You used a weapon, in this case, a piece of firewood.
    
17. You hit her twice with it.
    
18. I increase your sentence to 9 months imprisonment.
    

MITIGATION

19. You have a family to support.
    
20. You are remorseful.
    
21. This is your first offence.
    
22. I accept that some passion and emotion must have existed at the time.
    
23. You have cooperated with police during your interview.
    
24. Your sentence is reduced to 4 months imprisonment.
    

GUILTY PLEA

25. You have pleaded guilty early and I will reduce your sentence to 2 months and 16 days imprisonment.
    

SUSPENSION

26. I can suspend your imprisonment term either in whole or in part pursuant to section 26 (1 ) and ( 2 ) ( b ) of the Sentencing and Penalties Act 2009.
    
27. 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.
    
28. Your sentence will be aimed at deterrence and is to punish you adequately.
    

SENTENCE

29. You have not spent any time in remand and so your sentence will not be reduced any further.
    
30. You are sentenced to 2 months and 16 days imprisonment.
    
31. I am inclined to suspend your imprisonment term but only in part.
    
32. 1 month imprisonment is suspended for the next 18 months.
    
33. Do not commit any other offence punishable with imprisonment in the next 18 months or you risk this 1 month imprisonment held in waiting being activated.
    
34. You will serve 1 month and 16 days imprisonment, immediately.
    
35. The Domestic Violence Restraining Order [DVRO] with section 27 standard non-molestation which was imposed and explained to you on the 9^th of November 2019 is finalised against you. This is to protect your wife forever unless the DVRO is cancelled or varied.
    
36. Do not breach any condition of this DVRO or you may be charged with another offence.
    
37. 28 days to appeal.
    

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

Dated at Tavua this 18^th day of February, 2020