Maharaj v State [2010] FJHC 467; HAA048.2010 (25 October 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA048 of 2010

BETWEEN:

SURESH NAND MAHARAJ
Appellant

AND:

THE STATE
Respondent

Hearing: 12 October 2010
Judgment: 25 October 2010

Counsel: Appellant in person
Mr. F. Lacanivalu for State

JUDGMENT

[1] On 30 June 2010, the appellant was charged with unlawful wounding, contrary to section 261 of the Crimes Decree 2009. Upon arraignment he pleaded guilty to the offence and was sentenced to 18 months imprisonment by the Nasinu Magistrate's Court. He appeals against sentence.

[2] The two main contentions of the appellant are that he had reconciled with the victim, who is his de facto partner, and that his remand period before sentence was not taken into account.

[3] The facts are that the appellant and the victim are living together as de facto partners. He is a mechanic and she is depended on him for livelihood. On the day in question, the victim wanted to visit her father. When she approached the appellant to seek his consent, he got angry and suggested to her that she goes and lives with her father. The victim walked away. She went outside her house and called her father to cancel the visit. When she walked inside the house after talking to her father, the appellant picked up an iron rod and struck the victim's head. As a result the victim was seriously injured. She sustained a laceration on scalp that required six stitches.

[4] In mitigation the appellant said he was 33 years old and was the sole breadwinner for his family. He informed the court that he had reconciled with the victim.

[5] The victim was present in the Magistrate's Court. She confirmed the reconciliation and expressed her willingness to continue with her relationship with the appellant. She told the court that the appellant had previously assaulted her and a case was pending in court.

[6] In her sentencing remarks the learned Magistrate treated the appellant's guilty plea and the reconciliation with the victim as mitigating factors. The aggravating factor was the use of an iron rod to cause head injury to the victim.

[7] The learned Magistrate picked 2 years as a starting point. She added 6 months for the aggravating factor and reduced 12 months for the mitigating factors and arrived at a term of 18 months imprisonment.

[8] The maximum penalty prescribed for the offence of unlawful wounding is 5 years imprisonment.

[9] The victim was struck with an iron rod on the head. The attack was unprovoked. The only complaint that has merit is that the remand period of 16 days should have been taken into account. A reduction of the sentence by one month will sufficiently reflect the remand period.

[10] This was a serious case of domestic violence. The antecedent report shows that the appellant has a propensity to use violence towards his partners.

[11] When the appellant was sentenced, the Magistrate's Court was obliged to apply the Domestic Violence Decree and the Sentencing and Penalties Decree. The Domestic Violence Decree applies to de facto relationships as well. One of the objectives of the Domestic Violence Decree is to stop any form of violence in a domestic relationship. Violence means:

(a) physical injury or threatening physical injury;

(b) sexual abuse or threatening sexual abuse;

(c) damaging or threatening to damage property of a victim;

(d) threatening, intimidating or harassing;

(e) persistently behaving in an abusive, cruel, inhumane, degrading, provocative or offensive manner;

(f) causing the victim apprehension or fear by –

• (i) following the victim; or
  
• (ii) loitering outside a workplace or other place frequented by the victim, or
  
• (iii) entering or interfering with a home or place occupied by the victim, or
  
• (iv) interfering with property of the victim, or
  
• (v) keeping the victim under surveillance;
  

(g) causing or allowing a child to see or hear any of the violence referred to in paragraphs (a) to (f) inclusive;

(h) causing another person to do any of the acts referred to in paragraphs (a) to (g) inclusive towards the victim.

[12] Part three of the Domestic Violence Decree provides for a range of protection orders that a court can make to stop the violence in a domestic relationship. Section 26 permits the court to make the orders of its own motion.

[13] Section 4(3) of the Sentencing and Penalties Decree creates an obligation on the court to consider a range of factors when sentencing an offender in a case of domestic violence. The factors are:

(a) any special considerations relating to the physical, psychological or other characteristics of a victim of the offence, including –

(i) the age of the victim;

(ii) whether the victim was pregnant; and

(iii) whether the victim suffered any disability;

(b) whether a child or children were present when the offence was committed, or were otherwise affected by it;

(c) the effect of the violence on the emotional psychological and physical well being of a victim;

(d) the effect of the offence in terms of hardship, dislocation or other difficulties experienced by a victim;

(e) the conduct of the offender towards the victim since the offence, and any matter which indicates whether the offender –

(i) accepts responsibility for the offence and its consequences;

(ii) has taken steps to make amends to a victim, including action to minimize or address the negative impacts of the offence on a victim;

(iii) may pose any further threat to a victim.

(f) evidence revealing the offender's –

(i) attitude to the offence;

(ii) intention to address the offending behavior; and

(iii) likelihood of continuing to pose a threat to a victim; and

(g) whether the offender has sought and received counseling or other assistance to address the offending behavior, or is willing to undertake such counselling or seek such assistance.

[14] The only matter that the learned Magistrate considered under s.4(3) was the reconciliation with the victim.

[15] There is nothing in the court record to suggest that the learned Magistrate made an enquiry on any effort made by the appellant to address his violent conduct towards the victim in view of her claim that she had been previously assaulted by the appellant and a case was pending in the court. If an enquiry was made, the learned Magistrate would have realized the need to make orders under the Domestic Violence Decree to stop further violence on the victim.

[16] The imprisonment sentence of the appellant is only a punitive measure. The imprisonment sentence may not operate to stop the violence against the victim after the appellant is released from prison. In my judgment, the court should impose protection orders under the Domestic Violence Decree in addition to any sentence imposed on an offender in a case of domestic violence. This interpretation is consistent with the objectives of the Domestic Violence Decree. The Domestic Violence Decree does not prevent the court from enforcing its provisions even when the offender is punitively punished for an offence of domestic violence.

[17] It is rather unfortunate that neither the prosecution applied for protection orders for the victim nor the Magistrate's Court of its own motion considered making protection orders under the Domestic Violence Decree in this case. While it would have been preferable for the court of first instance to consider the orders under the Domestic Violence Decree, there is nothing in the Decree to prevent the High Court sitting in its appellate jurisdiction to make orders under the Decree. However, before any orders are made on an appeal, the appellant is entitled to be heard on the matter. For this reason I will hold a special hearing under the Domestic Violence Decree with the view of issuing protection order for the victim and against the appellant, to be effective after he is released from prison. I recommend the Legal Aid Commission assist the appellant in the hearing under the Domestic Violence Decree.

[18] The sentence is reduced from 18 months imprisonment to 17 months imprisonment to reflect the remand period. Otherwise the sentence is neither excessive, nor wrong in principle. The appeal is allowed to this extent.

Daniel Goundar
JUDGE

At Suva
25 October 2010

Solicitors:
Appellant in person
Office of the Director of Public Prosecutions for State