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State v Kunawasaitoga - Sentence [2025] FJMC 26; Criminal Case 602 of 2025 (9 July 2025)

IN THE MAGISTRATES’ COURT OF FIJI
AT NADI
[CRIMINAL JURISDICTION]

Criminal Case no: 602/2025

STATE
v.
ILISONI KUNAWASAITOGA

For Prosecution: Sgnt Vishal
For Defence: LAC – Mr Chang
Date of sentence: 9th July 2025

SENTENCE

Background

1. ILISONI KUNAWASAITOGA [hereinafter referred to as ‘Accused’] you were charged with one count of Criminal Intimidation and one Assault causing actual bodily harm contrary to 375 (1) (a) (i) (iv) section 275 and contrary to section of the Crimes Act 2009 respectively. The particulars of the charge are as follows:

Count 1
Statement of Offence [a]

ASSAULT CAUSING ACTUAL BODILY HARM: Contrary to Section 275 of the Crimes Act 2009.

Particulars of Offence [b]

ILISONI KUNAWASAITOGA on the 07^th day of May, 2025 at Nadi in the Western Division, assaulted one CAROLINE TOGA thereby occasioning her actual bodily harm.

Count 2
Statement of Offence [a]

CRIMINAL INTIMIDATION: Contrary to Section 375 (1) (a) (i) (iv) of the Crimes Act 2009.

Particulars of Offence [b]

ILISONI KUNAWASAITOGA on the 07^th day of May, 2025 at Nadi in the Western Division without lawful excuse threatened CAROLINE TOGA to kill with intent to cause alarm to the said CAROLINE TOGA.

2. The complainant in this matter is your wife.
   
3. You preferred the Itaukei language. You received a full set of disclosures from the Prosecution. You were represented by LAC. The charge was read, explained and understood by you. You pleaded guilty to the chargers on your own free will.
   

Summary of Facts

4. The summary of facts are as follows: On the 7th day of May, 2025 at about 10.35 a, (2235 hours) one Ilisoni Kunawasaitoga (the accused), 32 years, Driver of Nawaka, Nadi assaulted one Caroline Toga (A 1), 26 years, in house staff of Nawaka, Nadi causing her injuries and also threatened to kill the said (A 1).
   
5. On the above mentioned date time and place (A 1) was at home with (the accused) when (A 1) asked (the accused) about his call logs where (A 1) suspected (the accused) was messaging girls and deleting the conversation. (He) kept quiet. (The accused) then forced (A 1) to prepare breakfast but (A 1) refused to prepare the breakfast. (The accused) then started to swear at (A 1) sating “magaichinamu” meaning mother’s vagina, “caiji tamamu” meaning fuck your father and “kawaka” meaning cursed generation. After that the accused started to throw punches at (A 1) landing all over the body. (A 1) then fell to the ground. He then picked up the stick and wacked it on the back of (A 1) and also all over the body. After that (the accused) threatened (A 1) that he will kill (A 1). He continuing threatening and swearing at (A 1).

Specific Medical Findings

• (D 12, page 3 as per medical Form)
• Scratches and bruises noted.
  

6. The matter was then reported to Nadi Police Station by (A 1). (The accused) was later arrested, caution interviewed which he admitted to the allegation and later formally charged for one count of Assault Causing Actual Bodily Harm and one count of Criminal Intimidation.
   
7. You admitted to the Summary of Facts that was read to you. Being satisfied with your guilty plea to the charge and your admission to the Summary of facts, the Court convicts you accordingly.
   

MAXIMUM SENTENCE AND TARIFF

8. In terms of Section 275 of the Crimes Act “A person commits a summary offence if he or she commits an Assault Causing Actual Bodily Harm.” The prescribed penalty for this offence is a term of imprisonment for 5 years.
   
9. In the recent decision by Goundar J in State v Paula Gade Criminal Appeal No. HAA 031 of 2022 (30th of June 2023), the court noted that the tariff of domestic assault which was outlined in the case of Matai v State [2018] FJHC 25; Criminal Appeal 108.2017Ltk (26 January 2018) as being 6 months to 18 months imprisonment. In such cases, only in exceptional circumstances is a suspended sentence to be passed. Sending the convict back into the family home could well have perilous consequences. For a second offence of the same victim, a suspended sentence is inconceivable.
   
10. The penalty for the offence of Criminal Intimidation is 5 years or 10 years’ imprisonment depending on the charged section.
    

11. State v Baleinabodua and Tevita Seru (HAC 145 of 2010S) found that the acceptable tariff limit for the offence of Criminal Intimidation would be a sentence between 12 months to 4 years imprisonment. However, in Sadriu v State [2017] FJHC 216; HAA65.2016 (15 March 2017) Sharma J suggested that “...In my view an acceptable tariff would be a sentence between 6 months and 2 years imprisonment. Serious cases should be given a sentence in the upper range whilst less serious cases should be given a sentence at the lower end of the scale.”

STARTING POINT

12. In determining the starting point within the said tariff, the Court of Appeal, in Laisiasa Koroivuki v State [2013] FJCA 15; AAU 0018 of 2010 (5 March 2013); has formulated the following guiding principles:

“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 time. 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.”

AGGREGATE SENTENCE

13. The court will pass an aggregate sentence in this matter pursuant to section 17 of the Sentencing and Penalties Act 2009. In light of the above guiding principles, and taking into consideration the objective seriousness of the offence, I commence your sentence at 12 months’ imprisonment.
    

AGGRAVATING FACTORS

14. I find the following aggravating factors in this case:
    1. The offence is a domestic violence offence;
    2. There was no provocation from the complainant;
    3. You assaulted your wife on more than once resulting in more than one injury;
    4. There was a use of a weapon which caused fear to the victim;
       

I add 8 months to the starting point count for the above mentioned aggravating factors.

MITIGATION SUBMISSIONS

15. You submitted the following mitigation submission:
    1. You are 32 years old;
    2. Married with 3 children;
    3. Driver and earn $80 per week and sole breadwinner;
    4. Seek courts forgiveness;
    5. Remorseful;
    6. Reconciled with the complainant; (this was confirmed in court by the complainant)

7. You seek leniency;
8. You are a first offender;
9. Promise not to re-offend.
   

Your counsel submitted that the offending was the result of mild provocation arising from a financial dispute with the complainant. I do not accept this as a mitigating factor. Disagreements over financial matters within a marriage do not justify or excuse the conduct in question. I will deduct 6 months for your mitigation.

GUILTY PLEA

16. Your guilty plea at the earliest opportunity has saved the Court and Prosecution’s time and resources to run a full hearing. So an appropriate discount will be deducted from the sentence. I deduct 4 months for your early guilty plea.
    

REMAND PERIOD

17. You were remanded from 19th May, 2025 until 26th May 2025. Your time spent in remand will be regarded as time served and deducted accordingly. 7 days will be deducted pursuant to section 24 of the Sentencing and Penalties Act 2009. Your final sentence is 9 months’ and 23 days imprisonment.
    

SUSPENSION

18. The Court is mindful of section 26 (2), (b) of the Sentencing and Penalties Act 2009 on suspended sentence where the sentence does not exceed 2 years’ imprisonment.
    
19. Case authorities now state that there must be exceptional circumstances that exist for the court to suspend the sentence, especially in a case of domestic violence.
    
20. You are a first offender, have accepted responsibility by entering a guilty plea, and have expressed remorse for your actions. The complainant, your wife, confirmed that this was the first such incident and that she has forgiven you. However, it is clear from the facts that this offence arose from an argument that escalated unnecessarily and involved the use of a weapon. Domestic violence remains a serious and prevalent issue in our society, with frequent reports in the media. While the Court recognizes the importance of preserving familial relationships, it must also send a clear message that such violence within the home will not be tolerated. In light of this, I do not find a fully suspended sentence appropriate in the circumstances.
    

SUMMARY

21. Section 4 of the Sentencing and Penalties Act 2009 (“Sentencing and Penalties Act”) stipulates the purposes for which sentencing may be imposed by a Court; and sets out the relevant factors that a Court should take into account during the sentencing process.
    
22. Accordingly, ILISONI KUNAWASAITOGA, I sentence you an aggregate sentence of 9 months’ and 23 days’ imprisonment for one count of Criminal Intimidation and one count of Assault causing actual bodily harm, you are to immediately serve 1-month imprisonment and the remainder of 8 months and 23 days will be suspended for a period of 5 years.
    
23. If you commit any other offence within the next 5 years, your sentence may be activated pursuant to section 28 SPA 2009. Suspended sentence explained to the accused.
    
24. For the safety of the complainant, I also grant a permanent domestic violence restraining order with standard non-molestation conditions (section 27) for the protection and wellbeing of the complainant. Breach of the DVRO is an offence and you are reminded not to breach the conditions set on in the DVRO.
    

28 days to appeal.

................................
Talei Kean
[Resident Magistrate]

9th July, 2025, Nadi MC