#header-inner img {margin: 0 auto !important; #header-inner {text-align: Center ;} Fiji Coupfourpointfive: Naval officer gets off lightly after assaulting woman

Thursday, June 7, 2012

Naval officer gets off lightly after assaulting woman

A Naval Officer who assaulted a woman has been given a suspended sentence by a Sri Lankan magistrate. Why? Because the officer holds a responsible job and a conviction might affect his chances of promotion. The other reason? Because according to the magistrate a: "Suspended sentence" was introduced into English law as 'part of a wider search for ways of reducing the numbers in prison', and because of the 'strain which the prison population has suffered'.


State v Tabakanalagi [2012] FJMC 108; Criminal Case 731.2012 (31 May 2012)
IN THE RESIDENT MAGISTRATE'S COURT OF FIJI ISLANDS
AT SUVA

Criminal Case No; 731/2012

STATE

V

VILIMONI KARIKARISITI TABAKANALAGI

Prosecution : Cpl Reddy.
Accused : In person.
SENTENCE

1. You, Vilimoni Karikarisiti Tabakanalagi are here today to be sentenced following the admission of 'guilt' on your own accord and free will in this Court on 23.05.2012, for committing the offence of 'Assault Occasioning Actual Bodily Harm' under Sections 275 of the Crimes Decree 2009.


2. As per section 154(1) of the Criminal Procedure Decree the offence is reconcilable.
3. The victim of this case has been a 28 year old female. On 08.01.2012 she came to your place during lunch to meet your niece. She was not at home. The victim came again in the evening around 7.30 pm. But the niece was not available. It appears that the reason for her visit was that to take her mobile phone which was with your niece.
4. The second visit led to an argument and you being a 43 year old naval officer confronted with the victim. During the heated argument you grabbed her neck and pushed her against the wall. Then you held her from hair and pushed again to the wall for the second time.
5. The complainant victim sustained minor injuries due to the incident. As per the medical report the complainant sustained fresh abrasions and bruises on her body as a result of this. The matter had been reported to the police. Later you were arrested and interviewed under caution. During the caution interview you admitted the offence.


6. The Summary of Facts was read over, explained and you admitted it.

 


7. According to the Penal Code, Chapter 17, the offence of 'Assault Occasioning Actual Bodily Harm' under Sections 245 attracts a maximum sentence is 05 years imprisonment. The present offence even though brought under Section 275 of the Crimes Decree 2009 is similar.


8. The Tariff for 'Assault Occasioning Actual Bodily Harm' under Section 245 of the Penal Code (now repealed), varies from a suspended sentence to 09 months imprisonment. (per Goundar J in Jonethani Sereka v State[2008]HAA 027/08S, 25 APR 2008)
9. During your mitigation submission you pleaded for a non-conviction due to the fact that a conviction might affect your future prospects as a naval officer.
10. Sentencing and Penalties Decree 2009 offers discretion to sentence an accused person without entering a formal conviction. Section 16 states,


16. — (1) In exercising its discretion whether or not to record a conviction, a court shall have regard to all the circumstances of the case, including —
(a) the nature of the offence;
(b) the character and past history of the offender; and
(c) the impact of a conviction on the offender's economic or social well-being, and on his or her employment prospects.


11. The Court is mindful that this incident is somewhat personal or private in nature. But at the same time I would lay emphasis on the age and gender differences between the accused and the victim. The accused may have been provoked by the victim during the argument. But the victim was pushed against the wall twice.
12. In State v Batiratu [2012] FJHC 864; HAR001.2012 (13 February 2012) His Lordship Chief Justice Gates set out a check list before entering a non-conviction to an accused person.


'If a discharge without conviction is urged upon the court the sentencer must consider the following questions, whether:


(a) The offender is morally blameless.
(b) Whether only a technical breach in the law has occurred.
(c) Whether the offence is of a trivial or minor nature.
(d) Whether the public interest in the enforcement and effectiveness of the legislation is such that escape from penalty is not consistent with that interest.
(e) Whether circumstances exist in which it is inappropriate to record a conviction, or merely to impose nominal punishment.
(f) Are there any other extenuating or exceptional circumstances, a rare situation, justifying a court showing mercy to an offender.'
13. Having considered the said guidelines I cannot simply classify this action with 'trivial offences'. Further mere fact that the accused is a naval officer does not take him to any higher position than other ordinary people of the society to claim preferential treatment.


14. On the other hand section 154(1) of the Criminal Procedure Decree 2009 promotes reconciliation in the cases of 'Assault occasioning actual bodily harm'. The circumstances of this case overtake the two main hurdles of the section.


a) substantially of a personal or private nature; and
(b) not aggravated in degree —


15. The Court is equipped by section 154(3) of the Decree to either stay the proceedings for the offender to comply with any conditions which will be imposed by the Court, or to discharge the proceedings.


16. It is to be noted that reconciliation shall only proceed if the Court is satisfied that it is in the interests of the victim and it has to ensure that there is no pressure being exerted.[Section 154 (2) CPD]
17. The facts before this Court are that the accused is a naval officer and the victim is a person who does domestic duties. This shows the difference between the two individuals. It is acceptable to introduce the victim as a 'weaker bargainer' compared to the accused. The employment status of the accused itself has unseen pressurising effect on the 28 year old female who does house work. Hence the chances for an effective reconciliation will be less even if the Court promotes it.
18. You stated that you have sought forgiveness from the victim in a traditional manner and she accepted it. You went on to say that she did not come to Court because she is a student. The Court was never informed that she is a student. Anyhow I have already decided that this is not a case for reconciliation.
19. In view of the foregoing, I convict you for the offence and select 06 months imprisonment as the starting point for your sentence.


AGGRAVATING FACTORS

20. You have committed the offence on a female who was 28 years.


21. Repeat of the action for a second time will also aggravate the offence.


22. In the circumstances, I increase your sentence by another 03 months.


23. Your period of imprisonment now stands at 09 months now.


MITIGATING FACTORS

24. You said are 43 a year old; naval officer; first offender; earns about $ 490 fortnightly; sole breadwinner; remorseful; seeks court's leniency; promised not to re offend.


25. Your early guilty plea takes off 03months from your sentence. (1/3 of your total term of imprisonment- Akili Vilimone v State Cr.App. HAA 131/2007).


26. Your above personal circumstances will deduct another one month from your sentence.
27. Your term of imprisonment now stands at 05 months.
28. In terms of Section 26(2)(b) of the Sentencing and Penalties Decree 2009 a sentence below two years could be suspended. 'Suspended sentence' is also a mode of imprisonment. The only difference is you can serve it while leading your normal life. "Suspended sentence" was introduced into English law as 'part of a wider search for ways of reducing the numbers in prison', and because of the 'strain which the prison population has suffered'.
29. Applying the said principle, I suspend your sentence of 05 months imprisonment for 18 months in view of the promise you have made to this Court.


30. If you commit any crime and if found guilty by a Court of law, whilst serving the suspended sentence period of 18 months, you will be imprisoned for a term of 05 months in terms of Section 28 of the Sentencing and Penalties Decree 2009.


31. Section 26 (3)(a)(b) of the Sentencing and Penalties Decree 2009, has been complied with, in delivering this sentence.


32. Twenty eight (28) days to appeal.


Pronounced in open Court.
YOHAN LIYANAGE
Resident Magistrate
31st May 2012

We note the same magistrate last month discharged a case against a man accused of sexual assault because the police prosecutor appeared without the file.

40 comments:

  1. CHOOR Santa Maharaj is Mr Chaudhry's lost step son thats why he uses vulgar language on him.

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  2. such is the decision making process in fiji at the moment.

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  3. You pay peanuts, you get monkeys !

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  4. ROFLMFAO. Indeed. I hope the illustrious gathering of the Fiji Women's Forum has considered these kinds of stunts in their farcical 're-think' attempts on the role of the military.

    There is no 're-think' needed. The military just need to abide by the remits of their constitutional role as clearly demarcated in the 1997 Constitution.

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  5. And here's the idiot Tikoitoga


    The military will continue to be involved in all the reform processes to ensure that all the goals and objectives set out from 2006 are fully achieved.

    Land Force Commander Colonel Mosese Tikoitoga said no one can tell the security forces, especially the military, to stay away from the electoral and constitutional reform processes as this was started by the RFMF.

    This follows the comments by Women’s Forum representative and Fiji Women’s Rights Movement’s Virisila Buadromo that the security agencies should not be involved in the electoral and constitutional process as it may have an unintended negative impact.

    There is an audio file attached to this story. Please login to listen.

    Colonel Tikoitoga said the military will be involved all the way.

    There is an audio file attached to this story. Please login to listen.

    Colonel Tikoitoga said the women’s groups should not try to hijack all the work the military has done, and he questioned who is creating the general perception that the military is making threats and creating fear.

    There is an audio file attached to this story. Please login to listen.


    Story by: Vijay Narayan

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  6. fiji is a joke now.
    why we waste time and money to do another constitution ?
    read mosese comment. rfmf will never give back powers .
    they scared to end up i jail.
    i hope auss/nz /un/usa/cw all reading all this comments coming from rfmf thugs like mosese and aziz. and crook frank/khaiyum

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  7. fiji is military state now.
    frank/khaiyum is ruling fiji with fool like mosese and army supporting them.
    fijian need to stand up and fight like middle east people .usa just bomb this army idiots.
    no guts no glory.

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  8. What goals and objectives has the military government achieved so far may I ask..answere is Zilch..zero..yaloka..all they have done is bring down the economy to its knees with its inconsistent..incompetent reforms..building roads with loaned money from chineese while other roads are in dipilidated state..they wanted to paint a picture of fighting corruption when they themselves were too corrupt..obviously..who is Tikoitoga trying to fool..he is just a suck up tabetabe to Bainikaiyum..and the ideas of some con men idiot that only want fast money and power through the barrel of a gun..

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  9. VILIMONI KARIKARISITI TABAKANALAGI, navy officer and now a certified coward and female-basher aka d!ckhead.

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  10. No sorry, this decision is not acceptable. A firm conviction against the regime and the supposed men who run the show with Frank, sexually frustrated dickless cowardly idiots who treat women like punching bags to boost their fragile egos. And he is part of the machinery now running the country. SHAME is not a strong enough word.

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  11. VILIMONI TAMATA QAURI QASE O IKO...

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  12. Vilimoni na tamata dau gunugunu beer wavoki tu ga mai Nauluvatu..sega ni ka vou qori na moku yalewa ni dau mokuti watina tu mada ga..kisi lusi..known case

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  13. ...And the monkey happens to be a Pommie now residing in the land of the Aborogines !!!

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  14. Hello Navy Officer Vilimoni, you're not supposed to beat up your own citizen and especially the weaker gender? May be you should re-think and change YOUR job to street thug?The woman you assaulted is the same citizen whose income tax payment are been used to pay for your wages.So, you need to to use your head when dealing with the general public, cause they're the one providing your bread&butter on the table! STUPID!!! If you want to act Macho get your ass assigned to the middle east battle field and try beating up the real enemy? Blockhead!

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  15. Why should the court be concerned that the officer's conviction for assaulting a woman might impede his naval career? In today's Fiji, women-bashing is the favorite sport of commodores!

    s/ Dakuwaqa

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  16. Instead of reforming Fijian society, the RFMF should be reforming itself... right out of existence!

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  17. I cannot believe that Coup four point five is so bereft of news it has to publish this trivial news. Did anyone die? No ! Was the victim permanently disabled as a result of the injury? No ! Did she get her fone back ? No ! How much did the fone cost? $40. Case closed ! Wot's the big deal ? Let's report substantial matters - stop nit picking and joiin the process of enlightening the Public about returning to democracy !

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  18. govt and judges are corrupt.
    what do we expect from the illegal govt and regime thugs.
    judges and lawyers need to stand up for the rule of law and protect constitution.
    why can they do this.

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  19. Stop asking overseas countries to bomb our land - have you seen the state of Iraq,Libya,Kabul etc etc -maybe uneducated monkeys like Rajesh dont realise that its our people that have nothing and nowhere to go will suffer

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  20. @anonymous 7:52 Delainabua should be bombed by USA and Australia. We Fiji citizens have had enough of this Mafia running the country bashing women and intimidating everyone else. Now Tikoitoga wants to intimidate us. We've had enough. We want these blockheads to be removed for good, We awnt USA to invade and bomb Delainabua,and remove all the weapons ( guns boms etc) and dump it in the sea in Kadavu.
    FYI we support Rajesh and want Delainabua bombed and the soldiers sent home to the village and earn a proper living like everyone else.

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  21. It is rather abnormal for court to consider the advancement of a naval officer who has committed a crime. A criminal is a criminal. The court actually should have taken a harsher attitude towards this officer. The judge should have actually send him to jail and thrown away the keys. Specially as an naval officer, he should set a better example for his piers, juniors and citizens of this country.

    The first thing on the agenda after the election should be to appoint an Independent Fact Finding Committee to investigate to involvement of judiciary in government. Also the Independence of the judiciary and if there has been any interference from any individual or the government. I would suggest International Commission of Jurists be part of the investigation team.

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  22. Military says....

    That's OK Vilimoni because you're ONE of us.

    In Fiji there's ONE rule for us Military and military cohorts and one rule for civilians....

    This we have told all judges in court....

    If they go against this wish they will be sacked.

    We have even told FICAC to tow the line....and be selective on whom they prosecute.

    Its our military rule....

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  23. tikotoga sounds like a desperate man. The thought of army giving up government is not going down well hence the outburst over a very trivial albeit relevant comment from the women's organisations.

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  24. Too sad for ordinary citizens because the 2009 Decree has been worded in such a way that will always protect members of the security forces esp. army and navy if they happen to come across this type of situation.Feel sorry for that young girl.I was wondering what if the accused was a cane cutter,bottle collector,etc. will his job be regarded as important even if he was working very hard to support his family.Will that be taken into account by the magistrate before sentencing.It may look unimportant to him but it is very important to the accused and family.We can see in the magistrates judgement that if you find a job in the Navy to support your family, it is regarded as more important than the one who sweats all day in the rain and sun cutting cane just to put food on the table for the family.Keep following all the court updates, you will see more inconsistency in their application of sentencing.

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  25. Bad decision by the judge, but are their any similar cases recently with the same type of sentencing been handed down or worse... so we can compare and say.. yes the judge did wrong on giving him a 2nd chance..

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  26. The message is: As long as you are RFMF and loyal to the dictator no harm will come to you. You may bash women, you may kill a man in front of his family, you may peddle drugs and you may take bribes. For the rest of the gang, we have Khaiyum's decrees.

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  27. Agree 7.52am,this is absurd,why ask for more trouble, violence isnt the answer,we are god fearing people of fiji and those that bring evil on us will be judged for their actions,jungle people like Rajesh Singh wont understand this logic because they are self opportunist, failed crooks living in NZ, hiding under somebodys sulu.

    Francis and Padoo.

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  28. Well there we go again. The law is explained for the regime idiots to go scott free. If this was another man he wouldn't have gotten free like that or the judge wouldn't have explained the law that way. Different strokes for different folks. What is the womens crisis centre doing??? they should be jumping up and down by now and commenting in the papers about the injustice against women. Come on Ms Ali & Edwina do your thing...don't let them get away with it.

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  29. Mark we don't have monkeys in Fiji. Secondly that onus is on the Magistrate because various issues are taken into account namely if it is a first offence.If this was a case of favouritism i would first to say it. Let me give you a fine eg-Last year in Australia a Senator was charged for shop lifing, was not asked to stop voting for the Liberal party etc but when it came to sentencing her the magistrate took into account she was a Senator! So guess what Mark no sentence was recorded but was let off with a warning. Now i ask of you to go do your home work instead of making a fool out of your self. The Aborigines are fighting to get the ARMY out of their Land because of the con the Howard Govt put on the country with regards to the INTERVENTION! not a single proof of what they claimed, it now appears they after their LAND because of what it has -URANIUM!They even offered a land council in excess of 10 million for them to move off their land which only had 10 houses all run down now how's that for starters! Now if you really care for the Indigenous Fijians as you make out help you Black brothers first before throwing the monkey calls , we all know where its directed,we ain't that stupid mate! You cound't help the Aborignes so now you want to help us Fijian not with your track record! As you once mentioned you gave up of them!

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  30. morally blameless?,all the lawyers in Fiji are totally useless and fake with that i rest my time,and brain with this fool..

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  31. We do not care about the criticisms - RFMF
    Publish date/time: 08/06/2012 [16:55]



    Share
    The military stressed that it will oversee the electoral and constitutional reform processes although criticisms have been levelled against the RFMF.

    Land Force Commander Colonel Mosese Tikoitoga said the RFMF wants to ensure that the country heads in the direction set out by the military in 2006.

    There is an audio file attached to this story. Please login to listen.

    Soqosoqo Vakamarama executive Adi Finau Tabakaucoro has said after the Women’s Forum in Suva that there is a general perception that the processes will be biased if the military is involved.

    She said the military has been involved in coups and they should not be involved in the electoral and constitutional processes.

    Colonel Tikoitoga said the RFMF wants a better Fiji and has stressed from the beginning that it will ensure all the necessary changes are made by 2014. -Fiji Village

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  32. Police Officers charged

    13:11 Today

    Taken from/By:
    Report by: Ritika Pratap

    Two police officers have been charged for their involvement in the theft of marijuana exhibits from the Nabua Police Station.

    They have been charged for unlawful supply of illicit drugs and interfering with evidence.

    The two will be produced in court today.

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  33. Maharaj @ 5: 40 PM

    Is this same Santa Maharaj that is wanna be Fiji 1st Party leader? I am understand that he likes to take credit for one Anit and Nick Naidu's work. Can real Santa Maharaj tell us when he was in Fiji last? What if any special contribution that Santa has made for Fiji.

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  34. Can someone post up photographs of these dirty goons who are wife-bashers and female-bashers so we can put name to face?

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  35. Same will happen if we take frank to court. He may admitt guilt and court will give him suspended sentence as it may affect any future promotion in navy!

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  36. @ June 8, 5:19 pm. Do you know the names of the officers that are being charged?

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  37. better fiji or f up fiji.20,000 unemployed and 35% live in poverty.
    people having mental problem.
    fiji in debt of 5 billion.
    what progress fiji have made since 2006 coup -nothing got worse.
    fiji doom under the regime.
    bano/nazhat/khaiyum and bai have made healthy bank balance using the army thugs.

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  38. Reply to Fijiana..
    Naval oficers are quickly becoming criminals by being bashers. The example has been set by none other than their Commander Kean, Don't expect anything examplary from these idiots.

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  39. We all know that those in the military are cowards, they're only pretending to be tough when they're in a group. If you challenge them for one on one fight, they will run. I know because I've challenged one guy from the army, he ran for his life.

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