Masirewa v State [2012] FJHC 1449; HAA27.2012 (29 November 2012)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

Criminal Appeal No: HAA27 of 2012

BEFORE : HON. MR. JUSTICE PAUL MADIGAN

BETWEEN:

JONE MASIREWA
Appellant

AND:

THE STATE
Respondent

Counsel : Appellant in person
Ms P. Lo for State

Date of hearing : 28 November 2012
Date of Judgment : 29 November 2012

JUDGMENT

[1] On the 11th October 2012 in the Magistrate's Court at Savusavu this appellant was convicted on his own plea of one count of grievous harm in that on the 12th September 2011, he did unlawfully and maliciously cause grievous harm to his de facto partner.

[2] On the same day the learned Magistrate sentenced him to a term of imprisonment of three years with a minimum to be served of two years and 6 months. It is against this sentence that the appellant appeals, he having abandoned an appeal against conviction before me at the hearing.

[3] The facts of the case were that at about 4pm on the 12th September 2011 the accused came back from town and called the victim to talk. An argument ensued and the accused slapped her on the mouth after which he pushed her head and she fell on to the door steps. Accused then started punching her all over her face and taking a piece of wood he hit her four times on the head and on the back of her shoulder.

[4] A medical examination revealed that the victim had a wound on the top of her skull although the skull was not fractured; she had bruises on her ear, her jaw and arm. There were multiple lacerations on her back.

[5] The appellant is 33 years old and has four children from this de facto union. He works as a driver for the China Railway company earning $146 dollars per week. He has a clear record, and says that he and his partner are reconciled and he asked for forgiveness.

[6] In assessing sentence the Magistrate was mindful of the maximum sentence (15 years) and the tariff (two to six years) and giving credit for the guilty plea and his remorse, he arrived at the total sentence of three years.

[7] This attack on the defenceless wife was particularly vicious and prolonged. To hit somebody over the head with a piece of wood is potentially dangerous in the highest degree and this Court has always said that such attacks should attract penalties in the upper range of the tariff.

[8] The appellant stressed before me that he and his partner had reconciled however the Domestic Violence Decree is explicit in that there can be no reconciliation of a domestic violence offence, if indeed reconciliation can be seen to be genuine which it rarely is.

[9] In the case of Wise [2008] FJHC, Madame Justice Shameem said this:

"The appellant submitted that this is a family dispute and that this a mitigating factor. I do not agree. The fact that an assault or threats of assault occur within a family home does not make it any less a criminal offence. To suggest otherwise would be to give those who hold positions of power and authority within the home virtual impunity from prosecution and punishment. A criminal offence is an offence whether it is committed on the street on strangers, or in the home on ones own family members. Indeed it may be said that offences committed on family members should be considered very seriously by the courts because of the gross betrayal of trust perpetuated on those family members."

[10] This Court endorses those dicta whole heartedly. Violence against family members will not be reconciled and they will be the subject of heavy sentences.

[11] Attacks to the head should attract a minimum term of two years imprisonment and prolonged intensive attacks will attract sentences in the upper range of two to six years. It is only in extremely rare circumstances that sentences for domestic violence assaults will be suspended.

[12] The learned Magistrate in this case approached the sentence quite properly. He gave credit for the plea of guilty and for the remorse and he gave proper weight to the aggravating features. If anything, he erred on the side of leniency.

[13] The appeal against conviction having been abandoned is dismissed and the appeal against sentence is also dismissed.

Paul K. Madigan
JUDGE

At Labasa
29 November 2012