Raisoqoni v State [2011] FJHC 32; HAA004.2011 (7 February 2011)

IN THE HIGH COURT OF FIJI

AT LABASA
APPELLATE JURISDICTION

Criminal Appeal No: HAA004 of 2011

BETWEEN:

PANAPASA RAISOQONI
Appellant

AND:

THE STATE
Respondent

Counsel: Appellant in Person
Mr. M. Kaisamy for State

Date of Hearing: 4 February 2011
Date of Judgment: 7 February 2011

JUDGMENT

[1] The appellant was convicted of assault causing actual bodily harm and sentenced to 6 months imprisonment in the Magistrates' Court at Savusavu. He filed an appeal against sentence. When he appeared for hearing, he applied for leave to withdraw his appeal saying he is about to be released from prison.

[2] The grounds of appeal alleged that the Magistrates' Court failed to consider the following factors:

1. Reconciliation with the victim.
2. Previous good character.
3. Early guilty plea.
   4. Mitigation.
      

[3] The victim is the spouse of the appellant. At the time of the offending the appellant was employed as a chef in a resort. On the day in question the victim approached the appellant at his work while he was drinking beer with his workmates. While they were arguing, a female companion of the appellant joined in the argument. The appellant and his female companion punched the victim several times. The victim sustained lumps, bruises, laceration and swellings over her head and face.

[4] The maximum penalty prescribed for assault causing actual bodily harm is 5 years imprisonment.

[5] In his sentencing remarks the learned Magistrate took into account the appellant's early guilty plea, remorse and previous good character as mitigating factors. As for aggravating factors the learned Magistrate took into account the assault arose from a domestic dispute. The victim was physically injured and alcohol was involved.

[6] The learned Magistrate gave no weight to reconciliation because the victim informed the court that the appellant had previously assaulted her.

[7] The learned Magistrate correctly pointed out that the offence arose from a domestic relationship and therefore was not reconcilable. This, however, does not mean that reconciliation could not be taken into account in sentencing the offender.

[8] Under the repealed Criminal Procedure Code the court was obliged to encourage reconciliation in cases of domestic violence. If the parties reconciled the court had an option of terminating or staying the proceeding without imposing any punishment on the offender.

[9] The Domestic Violence Decree has changed the old law. Under the new law, domestic violence offences are not reconcilable and therefore there is no discretion given to the courts to encourage reconciliation. However, if the victim freely reconciles with her partner and gives evidence of that effect, reconciliation is a factor that ought to be taken into account in sentencing the offender.

[10] In the present case, there was no evidence of reconciliation and therefore the learned Magistrate was not obliged to consider it. The term of 6 months imprisonment was within the tariff and was arrived at after all relevant factors were taken into account.

[11] No error of law or fact has been shown in the sentence of the appellant. Leave to withdraw appeal is granted and the appeal is dismissed.

[12] My concern is that the appellant was convicted of a domestic violence offence and neither the prosecution nor the learned Magistrate considered the provisions of the Domestic Violence Decree to grant relief to the victim.

[13] The Domestic Violence Decree binds the State (s.3). There is a legal obligation on the police (s.12), the prosecutors (s.16) and the judicial officers (s.17) to implement the provisions of the Decree in domestic violence cases.

[14] Assault causing actual bodily harm is listed as a domestic violence offence in Schedule 1A of the Decree.

[15] Section 24 (1)(b)(i) of the Decree provides:

Subject to subsection (3) but notwithstanding any other provision in this Decree-

(b) where a person –

(i) pleads guilty to, or is found guilty of, an offence which is a domestic violence offence;

the Court must make a domestic violence restraining order under this Decree for the safety and wellbeing of the person against whom the offence or alleged offence was committed;

(3) Where subsection (1) applies the Court need not make an order under this section if satisfied that, having regard to the safety and wellbeing of the person for whose protection the order would be made, the order is not required.

[16] Section 24(1)(b)(i) is a mandatory provision. The only discretion given to the court is when the safety and wellbeing of the victim is a non-issue. In my judgment, since the appellant was convicted of a domestic violence offence and the safety and wellbeing of the victim was an issue, the learned Magistrate had no discretion but to issue a restraining order against the appellant in addition to the prison sentence.

[17] Under its appellate jurisdiction, the High Court can make any order that could have been made by the Magistrates' Court.

[18] For the reasons given, I issue a restraining order for the safety and wellbeing of the victim. The terms of the order are that the appellant must not:

(a) physically assault his spouse.

(b) threaten to physically assault his spouse.

(c) damage or threaten to damage any property of his spouse.

(d) behave in an abusive, provocative or offensive manner towards his spouse.

(e) encourage any person to engage in abusive, provocative or offensive manner towards his spouse.

[19] The appellant is warned that breach of the restraining order is a criminal offence under the Domestic Violence Decree.

[20] Any application for variation, suspension or discharge of this restraining order is to be filed and heard in the High Court at Labasa.

[21] I direct the Clerk of the Court to make available a copy of this order to the victim, the appellant, and the Commissioner of Police for police records, without delay.

Daniel Goundar
JUDGE

At Labasa
7 February 2011

Solicitors:
Appellant in Person
Office of the Director of Public Prosecutions, Labasa for State