Fakaulifa v State [2015] FJHC 241; HAA022.2014 (9 April 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION
CRIMINAL APPEAL NO.: HAA 022 OF 2014

BETWEEN:

SOLOMONE FAKAULIFA
Appellant

AND:

STATE
Respondent

Counsel: Mr. Tawake P for Appellant
Ms. Kumar D for Respondent
Judgment: 09th April 2015

JUDGMENT

1. The appellant was charged in the Magistrate's Court Suva for Causing Grievous Harm contrary to section 258 of the Crimes Decree No. 44 of 2009.
   
2. On his own plea of guilty, the appellant was convicted and on 31st July 2014 he was sentenced to 2 years imprisonment. He appeals his conviction and the sentence on the following grounds.
   

Against the conviction

1. That the Learned Magistrate erred in law in convicting the Appellant when the summary of facts failed to disclose the specific nature of the injuries on the victim to substantiate the offence of grievous harm.
   

Against the sentence

1. That Learned Magistrate erred in law in failing to consider and properly account the issue of provocation as a mitigating factor as outlined in the summary of facts.
   
2. The 2 years imprisonment sentence was harsh and excessive considering the fact that the appellant was provoked by the victim and his family background.
   

Appellant's submission.

3. It was submitted on behalf of the Appellant that the summary of facts failed to disclose the specific nature of injuries on the victim to substantiate the element of grievous harm. Also it is submitted that the doctors report does not find any grievous injuries as defined in section 4 (1) of the Crimes Decree.
   
4. On the appeal on sentence it is submitted that the learned Magistrate has failed to consider the provocation as a mitigating factor.
   

Submission by Respondent (State)

5. It is submitted by the State that although the offence charged in the Magistrate's Court is an indictable offence triable summarily, the Learned Magistrate has not given the choice to the Appellant to elect the court. Therefore the proceeding in the Magistrate's Court as a whole is null and void. Respondent submits that this court should therefore declare the Magistrate's Court proceedings null and void and should remit the case back to the Magistrate's Court for the election to be put to the appellant.
   
6. On the ground of appeal against the sentence, it is submitted that the summary of facts does not reveal any grievous harm to the victim and therefore State concedes that this ground has merit.
   
7. It is further submitted that on the admitted summary of facts, this court can convict the appellant for the offence of Assault Causing Actual Bodily Harm and sentence the appellant accordingly.
   
8. Counsel for State (Respondent) made lengthy submission on the issue of the accused not being given the choice to elect the court. After the State's submission, counsel for appellant also agreed that the choice to elect the court was not given to the accused in the Magistrate's Court.
   
9. However on perusing the Magistrate's Court copy record as well as the original court record I find that the learned Magistrate has rightly given the accused the right to elect the court and that the accused had elected Magistrate's Court. Therefore the submissions made by the State counsel and later by the defence counsel that no choice to elect the court was given are misconceived.
   
10. The admitted summary of facts as mentioned in the Magistrates court are:
    

● On 28/07/14 at about 0600hrs Solomoni (Accused), 35 yrs, labourer of Lot 8 Block 33 Grover lane hit his wife Akanisi Uwe Mariwa (PW-1), 37 years, elections office of above same address with a broom stick (sasa) and also with a piece of wood.

● On above date time and place (PW-1) woke up when (Accused) returned home from doing night duty. (PW-1) asked (Accused) if he was having an affair with another lady as she saw (Accused) on the previous day with another lady walking pass the house and she put his clothes outside the house. (Accused) got angry and when he saw his belongings outside the house he kept on arguing with (PW-1) and started beating (PW-1) with a broom stick on her back and pulled her out by her vest and told her to bring his clothes inside the house. Whilst she was still outside (Accused) continued beating her with the broom stick on her back and right side of the leg. After that (Accused) pulled her inside and brought another thick wooden stick and hit her several times on her right side of her thighs and hips, and also on her head whereby she received injuries.

● The matter was reported and (Accused) was arrested and interviewed under caution.

● (Accused) was formally charged for the offence of Grievous Harm: contrary to section 258 of the Crimes Decree No. 44 of 2009.

● The (Accused) is appearing in custody at Suva Magistrate's Court on 30/07/2014.

11. Grievous Harm is defined in section 4(1) of the Crimes Decree.

'Grievous Harm' means any harm which –

(a) amounts to a maim or dangerous harm; or

(b) seriously or permanently injures health or which is likely so to

injure health; or

(c) extends to permanent disfigurement, or to any permanent or

serious injury to any external or internal organ, member or sense;

12. Admitted summary of facts does not disclose any grievous harm as defined. Therefore the learned Magistrate erred when he convicted the accused for causing grievous harm to the complainant although he pleaded guilty, when in fact the admitted summary of facts did not reveal any grievous harm. Therefore I set aside the conviction.
    
13. However I find that the admitted summary of facts reveals a lesser offence which is Assault Causing Actual Bodily Harm. Section 160 of the Criminal Procedure Decree 2009 provides for conviction of minor offences included in the offence charged.
    
14. Section 160 reads:
    
    • (1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved but the remaining particulars are not proved, the person may be convicted of the minor offence although he or she was not charged with it.
      
    • (2) When a person is charged with an offence and facts are proved

which reduce it to a minor offence, the person may be convicted of the minor offence although he or she was not charged with it.

15. Accused pleaded guilty in the Magistrate's Court for the offence of causing grievous harm. However the admitted summary of facts does not reveal grievous harm but actual bodily harm. Therefore acting in terms of section 160 of the Criminal Procedure Decree I convict the accused for the minor offence of Assault Causing Actual Bodily Harm contrary to section 275 of the Crimes Decree 2009.
    
16. The Learned Magistrate has identified the aggravating and mitigating factors correctly. He has considered that this is a domestic violence, that the appellant kept attacking her and also he attacked on her head, as aggravating factors. As mitigating factors the learned Magistrate considered that he was remorseful, married with children and the early guilty plea.
    
17. Counsel for Applicant submitted that the Learned Magistrate has not considered the issue of provocation as a mitigating factor. The summary of facts revealed, that when the accused came back after night duty, the victim wife had asked the accused about him having an affair with another lady. Apart from that, the complainant had put the clothes and the belongings of the accused outside the house where the argument started which led to the assault.
    
18. I find that the wife putting his clothes out of the house is no excuse for him to assault the wife as he had done in this case. However court will consider this also as a mitigating factor as he may have got provoked by seeing his clothes out of the house, although it cannot to be taken as a defence for the assault.
    
19. In Semisi Botaki V. State [2012] FJHC 1250; HAA015.2012 (1 August 2012) Justice Madigan affirmed the sentence of 7 months imprisonment imposed on the accused where he assaulted his wife including her head which was a domestic violence. It was observed that 10 months starting point was appropriate in that case.
    
20. I take 10 months as the starting point. I add another 8 months for the aggravating factors and deduct 7 months for the mitigating factors. I deduct further 3 months for the early guilty plea. Therefore now the final sentence is at 8 months imprisonment.
    
21. Hence, the appeal is allowed and sentence varied.
    
22. For the safety of the victim, a final Domestic Violence Restraining Order is made.
    
23. The appellant was sentenced by the Magistrate's Court on 31/07/2014 and he now has served more than 8 months. Therefore as the appellant has already served the sentence, I order that the appellant be released from the prison forthwith.
    

Priyantha Fernando
Judge

At Suva
Office of the Legal Aid Commission for the Appellant
Office of the Director of Public Prosecutions for the Respondent