Natale v The State [1990] FJHC 47; Haa0083j.1989s (25 May 1990)

IN THE HIGH COURT OF FIJI
At Suva
Criminal Jurisdiction

CRIMINAL APPEAL NO. 83 OF 1989

Between:

MOSESE NATALE
Appellant

v.

STATE
Respondent

Mr. V. Parmanandam for the Appellant
Mr. J. Naigulevu for the Respondent

JUDGMENT

On the 5th of June, 1989 the appellant was granted bail pending the hearing and determination of his appeal against a sentence of 3 years imprisonment imposed by the Magistrate Court, Navua on the 24th of May, 1989 after the appellant had been convicted on his guilty plea to an offence of Act With Intent to Cause Grievous Harm.

The facts that were admitted by the appellant were that on the day in question he assaulted his wife with an umbrella and a kitchen knife causing injuries to her head and upper arm which required suturing.

In sentencing the appellant the learned magistrate passed a deterrent sentence without making any allowance for mitigating factors. After canvassing the facts and the appellant's record of previous convictions the learned magistrate said:

"The law and the judicial system is available to both the sexes, it must be allowed to protect therefore to protect this woman victim. It is my humble view that in passing sentence with this perspective in mind it might discourage others from committing similar offences - otherwise for some wives the price to pay for the sake of family unity will always be too high. "

Learned counsel for the appellant objected to the above-quoted statement as "gratuitous" and unsupported by any statistical evidence of prevalence or by the particular circumstances of the complainant.

For instance, there is no history of similar assaults on the complainant by the appellant, and although the appellant's record of most recent convictions does indicate a propensity to violence his corresponding sentences also indicate that the appellant responds positively to a non-immediately custodial sentence such as a suspended sentence or to being bound over. He has also been out of trouble for the past 5 years and should be encouraged.

Learned counsel for the appellant also pointed out that the appellant has already served 2 weeks of his sentence; has reconciled according to Fijian tradition with the complainant and they are now both practising Christians.

Furthermore the appellant and his wife continued to live together after the incident and ever since he was released on bail pending the hearing of his appeal without further incident.

It is unfortunate that this appeal was only heard 10 months after the appellant was released on bail and over that period of time the appellant must have nurtured the expectation that he would not be returned to prison to serve the remainder of his sentence.

Nevertheless this court would have little hesitation in appropriate cases in returning an unsuccessful appellant to prison to serve the unexpired portion of his sentence.

However having carefully considered all the circumstances of this case and whilst sympathising with the sentiments expressed by the trial magistrate and accepting that a custodial sentence was merited, I do not consider this an appropriate case to return the appellant to prison.

Learned State Counsel in opposing the appeal conceded that the sentence was excessive and with that I agree.

The appeal is accordingly allowed. The sentence is quashed and in substitution therefor a sentence of 12 months imprisonment is imposed but in the light of the various mitigating factors urged on behalf of the appellant the sentence is suspended for a period of 3 years with effect from the 24th of May 1989.

(D.V. Fatiaki)
JUDGE

At Suva,
25th May, 1990.

HAA0083J.89S