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  FJMC 108; Criminal Case 731.2012 (31 May 2012)
IN THE RESIDENT MAGISTRATE'S COURT OF FIJI ISLANDS
Criminal Case No; 731/2012
VILIMONI KARIKARISITI TABAKANALAGI
Prosecution : Cpl Reddy.
Accused : In person.
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 The Tariff for 'Assault Occasioning Actual Bodily Harm' under Section 245 of the Penal Code (now repealed), varies from a suspended sentence to 09 months imprisonment.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 StateHAA 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  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.
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.
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.
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.