Guanavinaka v State [1995] FJCA 12; AAU0014u.94s (26 May 1995)

Fiji Islands - Guanavou v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT LABASA

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 0043 OF 1998

BETWEEN:

MOSESE GAUNAVOU
Appellant

AND:

THE STATE
Respo

Appellant in Pers> Mbr> Ms. A. Driu for the Respondent

JUDGMENT

The appellant was convicted in the Taveuni Magistrate Court after he pleaded guilty to an offence of Act With Intent to cause Grievous Harm and was sentenced to 2 years imprisonment.

The brief facts of the case were that the appellant who had heard a rumour that his wife, the complainant, was having an extra marital affair decided 'to hit her and punish her' despite her denials on being confronted.

On the evening in question after 'taking a few drinks' the appellant approached his wife and forcibly took her away on horseback to a secluded spot where he stripped her and repeatedly and mercilessly beat her on the back and body with a stone. He even attempted to strangle her with her own T-shirt and his bare hands.

As a result the complainant sustained a 'black eye' and 'multiple bruises' to the neck and upper body. She was admitted in hospital for 3 days.

In sentencing the appellant the trial magistrate noted 'that what the accused did is in the most serious category' aggravated by the attempted strangulation of the complainant 'with her own clothes' and deserving of a deterrent sentence 'not only as a lesson to the accused but to like-minded people'.

The appellant now appeals against the sentence on the following grounds:

(1) that he was 'never given a chance for mitigation in Court';

(2) that 'two years in prison is too much' as the complainant 'has only got minor injuries';

(3) that he has 'already reconciled with his wife and she has accepted it'; and

(4) that his three young innocent children have had to suffer needlessly.

As to ground (1) the Magistrate Court record (at pages 9 & 11) clearly reveals that the appellant was given ample opportunity to mitigate on his own behalf and did so in response to the Court's recorded question: 'What would you like to say in mitigation?' There is no merit in this ground.

As to ground (2), the appellant was charged with an offence which carried as a maximum penalty a sentence of life imprisonment. Two (2) years cannot by any stretch of the imagination, be considered 'too much' on that score. As for the complainant's so-called 'minor injuries', the fact of her admission to hospital for 3 days is sufficient evidence of their seriousness.

As for the so-called 'reconciliation' [ground (3)] that the appellant claims has been accepted by his wife, it is noteworthy that on the trial date 30th June 1998 (barely 5 days after the assault and 2 days after her discharge from hospital), the appellant when asked by the trial magistrate: 'Have you reconciled? replied: 'No. She is angry and won't.' As well she might be.

Nothing exists in the Magistrate Court record nor has anything been placed before this Court independent of the appellant's own self-serving claim, to support a finding that a genuine and freely accepted reconciliation has been effected between the appellant and his wife.

At this juncture it ought to be noted that if a court is minded to accept reconciliation as a mitigating factor then it is duty bound before acting upon such a plea to personally verify its authenticity and acceptance by the complainant and to record the same in the court record. Unilateral declarations from an accused person is wholly unsatisfactory and ought to be disregarded.

State Counsel in opposing the appeal stressed that this case was not an 'ordinary domestic dispute' but one where the assault was pre-meditated, sustained and aggravated in several respects.

I have considered carefully all that has been urged upon me by the appellant both orally and in writing and am particularly concerned at the prevailing attitude or perception in our society that there is such a thing as an 'ordinary' or 'usual' case of domestic disputes where a degree of physical violence is either acceptable or tolerated.

Let me say at once that any violence, whether threatened or actual, has no place in relations between husbands and wives and this Court will not countenance the use of physical violence as a means of resolving differences or disputes in marital relations.

At the hearing of the appeal, the appellant expressed regret at the needless suffering his temporary absence would cause his innocent children who 'need a father'. But no child needs a father who assaults and hospitalises his/her mother for three (3) days. Every child has a right to be brought up in a loving secure environment and no greater love exists for a child than to see and experience it in the relations between his parents in the home.

What's more a child that is brought up in a home where violence is a regular occurrence whenever differences arise between his parents is bound to grow up thinking that the use of physical violence to settle disputes and differences with a 'loved-one' is acceptable, even normal, behaviour. Plainly it is not and the Courts have a duty in dealing with such cases to make it clear in the sentences that it imposes.

The appellant was sentenced on the 30th of June 1998 and has been in prison now for eight (8) months which is effectively, half his term.

I am hopeful that the appellant has learnt a valuable lesson from his period of incarceration and am willing to extend to him some leniency so as to enable him to rejoin his family should they be willing to accept him back.

The sentence is accordingly reduced so as to permit the appellant's immediate conditional release. As a protective measure and in order to assist the appellant in his desire to reform himself the remaining unexpired sentence of twelve (12) months imprisonment is hereby ordered suspended for a period of two (2) years from the date hereof.

The appellant is warned that if he should commit an imprisonable offence within the next two (2) years he will be returned before this Court and will be required to serve out the unexpired portion of this sentence, namely, twelve (12) month's imprisonment in addition to any other sentence that might be imposed for his re-offending.

D.V. Fatiaki
JUDGE

At Labasa,
25th February, 1999.

Haa0043j.98b