State v Lastervicker [2012] FJHC 1237; HAC42.2012 (26 July 2012)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

Criminal Case No. HAC 42 of 2012

BETWEEN:

STATE

AND:

JOHN LASTERVICKER

BEFORE: Mr. Justice P. K. Madigan

COUNSEL: Ms M. Fong for the State
Accused in person

Date of Hearing: 24 July 2012
Date of Sentence: 26 July 2012

SENTENCE
Domestic Violence

1. The accused appeared in the Magistrates Court at Savusavu on the 19th instant where he entered a plea of guilty to the following offences

First Count

ACT INTENDED TO CAUSE GRIEVOUS HARM: contrary to section 256(1)(a) of the Crimes Decree 2009

Particulars of Offence

John Lastervicker on the 9th day of July 2012 at Savusavu in the Northern Division with intent to do some grievous harm to Alisi Draunimasi unlawfully wounded the said Alisi Draunimasi by kicking and hitting her with a stick.

Second Count

CRIMINAL INTIMIDATION: contrary to section 375(1)(a)(i)(iv) of the Crimes Decree 2009

Particulars of Offence

John Lastervicker, on the 9th day of July 2012 at Savusavu, in the Northern Division, without lawful excuse and with intent to cause alarm to Alisi Draunimasi, threatened the said Alisi Draunimasi with injury to her personally.

2. The accused admitted a set of facts put to him and he admitted one previous conviction for larceny in 2006.

3. The facts admitted by the accused are that the victim is his de-facto wife and they have two children of the relationship. At about 4pm in the afternoon of the 9th July the two argued and the "wife" refused to give the accused money to buy cigarettes. The accused picked up a stick and hit the victim and then, wearing gumboots at the time, started kicking her. He then got a chain which was used to tie up the dog and tied her up with it. He thereafter collected some coconut leaves which he set fire to in front of her. He told her that if she refused money for cigarettes again he would burn her alive. The victim feared for her life and that of her two young daughters who were present.

4. In mitigation before this Court, the accused tells me that he is 31 years old and his wife 19 years old. The two children are 3 and 1. He has been co-habitating with the victim for two years. He says he acted out of anger but is now very remorseful and asks for forgiveness. He works as a farmer earning about $80 per week his wife and children have now gone to stay with her parents.

5. This case is obviously a domestic violence matter, an issue not dealt with below, and before proceeding to sentence this Court, pursuant to Section 23 of the Domestic Violence Decree makes a domestic violence restraining order for the safety and well-being of the wife and her children; the order being the standard non-molestation order in favour of the wife and children in terms of sections 27 and 28 of the Domestic Violence Decree

6. The medical report provided shows bruising, tenderness and swelling to the victim's body and in the opinion of the medical practitioner her "soft tissue injuries are secondary to blunt force".

7. Although the injuries to the victim in this case are not serious, it is nevertheless an extremely perturbing case. In response to the denial of funds to buy cigarettes this accused has beaten his wife with a stick, tied her up with a dog chain and threatened her with actual fire and the threat of fire. All in the purview of their two young children. His behavior towards his wife was undignified, humiliating and demeaning.

8. The maximum penalty for act causing grievous harm is life imprisonment and as this Court said in Tuigulagula HAC 81 of 2010, acts causing harm to spouses have for a long time been rewarded with sentences that are far too lenient. In Mokubula [2008]FJHC164, Shameem J.,after reviewing the authorities for the offence concluded that the prevailing tariff is between six months and two years; dependent on the degree of provocation and the degree of injury inflicted.

9. I take the inhumane treatment of this victim being tied with dog chains as seriously as being badly beaten. The provocation was minimal (being denied money for cigarettes) and the beating with a stick and kicking, leads me to select a starting point for this offence of three years.

10. Section 4(3) of the Sentencing and Penalties Decree requires, in a Domestic Violence situation, for the Court to have regard to......

(b) Whether a child or children were present when the offence was committed, and........

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

11. On the accused's own admission, the children were watching this whole incident "from the hallway" and as they are very young it could have a lasting effect on them. In addition the wife is no longer able to count on the moral and financial support of her husband and is now living elsewhere. For these two aggravating factors I add a further two years to the sentence, bringing it to an interim total of five years imprisonment.

12. For the accused's plea of guilty and his remorse, I deduct two years from that total, meaning that the accused will serve a term of imprisonment of three years.

13. The maximum penalty for criminal intimidation under the section he has been charged with is five years imprisonment. (He could have been charged under the far more serious section 375(2)(a), but wasn't). In any event given that the intimidation was part and parcel of the same incident and in taking into account his plea of guilty I sentence the accused to two years for this offence, to be served concurrently with the first offence.

14. The accused will serve three years imprisonment with a minimum term of two years before he can be considered for parole

Paul K. Madigan
Judge

At Labasa
26 July, 2012