State v Kailoma [2018] FJHC 763; HAC46.207 & HAC63.2017 (21 August 2018)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 46, 63 of 2017
[Magistrates’ Court Case No. 368 & 493 of 2017]

BETWEEN : STATE

AND : RAMINAU KAILOMA

Counsel : Ms A Vavadakua for the State
Mr V Tuicolo for the Accused

Dates of Hearing : 26 February 2018 and 15 March 2018

Date of Judgment : 21 August 2018

SENTENCE

[1] Raminau Kailoma, you have freely and voluntarily pleaded guilty to one count each of assault causing actual bodily harm contrary to section 275 of the Crimes Act, act with intent to cause grievous harm contrary to section 255(a) of the Crimes Act and breaching a domestic violence restraining order contrary to section 77(1) of the Domestic Violence Act. Your guilty pleas are informed. You are convicted as charged.

[2] The victim in all three charges is your spouse, Alusia Nailagavesi. She is 36 years old. You are 45 years old. You have been married for 17 years and together you have two children – a son and a daughter. Both children are teenagers now. The incidents occurred at Nakalou village in Macuata, Vanua Levu. You are from Nakalou village. Your spouse is from Kubulau, Bua.

[3] On 28 July 2017, you had an argument with your spouse when she declined to assist you to load a pig in a vehicle. You got angry and assaulted her with a stick. She sustained bruises, swelling and tenderness on her left thigh and buttocks. She reported the incident to police on 1 August 2017. Medical examination confirmed the injuries. On the same day, she obtained an interim domestic violence restraining order with standard no-contact and non-molestation conditions from the Magistrates’ Court. You had notice of that order. The protected persons were your spouse and two children.

[4] Under caution, you admitted the allegation. You were charged and produced in the Magistrates’ Court. The Magistrates’ Court released you on bail on 22 August 2017. A condition of bail was that you make no contact with your spouse.

[5] After being released on bail, you called your spouse several times on her mobile on 30 September 2017 to trace her location. When she answered the phone she reminded you that you were not to contact her. She did tell you that she was returning to Nakalou village to visit her children. At around 6 pm that same evening, you confronted your spouse at a secluded location near your village. Your 14 year old son was with her. You tried to have a conversation with her but she told you that she will only speak to you in the village and not in a secluded place. As she walked towards the village, you went in between her and her son. You took out a cane knife that you had concealed inside your overalls and struck her legs from behind. She screamed in pain and fell to the ground. Your son also screamed in horror seeing you striking his mother with a cane knife. He ran towards his mother. He saw blood gushed out of her legs. She bled profusely. You fled the scene leaving your spouse and son in a distressed condition.

[6] Fortunately, there were some men who were returning to the village after a training session who heard the distressed calls of the victim and her son. They transported the victim to the nearest health centre. Due to the seriousness of her injuries, she was moved to the Labasa Hospital on the same night. When the doctors at the emergency department at the Labasa Hospital attended to the victim at around 9.50 pm, she was pale and losing consciousness. The victim had sustained deep open wounds to her lower legs. She was transferred to the orthopaedic unit at the Colonial War Memorial Hospital in Suva. She was hospitalized in Suva for two months and had to undergo surgery. After surgery she was transferred to the Labasa Hospital to continue with her in-patient treatment.

[7] You were arrested and interviewed under caution. You admitted assaulting your spouse with a cane knife.

[8] In assessing the seriousness of the individual offence, regard must be made to the maximum penalty prescribed for the offence. Anyone convicted of assault causing actual bodily harm is liable to be imprisoned for 5 years. The tariff ranges from a suspended sentence where there is a degree of provocation and no weapon used, to 9 months’ imprisonment for the more serious cases of assault (State v Anjula Devi, Criminal Case No. 04 of 1998 Lab).

[9] Act with intent to cause grievous harm is punishable by life imprisonment. Grievous harm is a dangerous or serious harm. The tariff is 6 months’ imprisonment to 5 years’ imprisonment (State v Mokubula [200HC 164; HAA0052J.2003S 003S (23 December 2003)).

[10] Breach of a domestic violence restraining order is a new offeneated by section 77 (1) of the Domestic Violence Act. That section states that any person wson who, having notice of a domestic violence restraining order by which they were bound, without reasonable excuse contravenes the order, is guilty of a criminal offence and is liable on conviction to a fine of $1000.00 and a term of imprisonment for 12 months. There is no established tariff for this offence.

[11] The offences you committed constitute family violence. In sentencing, the Court must have regard to all the factors outlined in section 4(2) of the Sentencing and Penalties Act, and in particular, the factors outlined in subsection (3).

[12] The Court heard the victim on the impact of the violence on her and her children. The family violence had both physical and psychological impact on the victim. On both occasions the victim sustained physical injuries. On the second occasion the victim sustained serious injuries. She was hospitalized for more than three months. She has sustained permanent injuries. The injuries have affected her mobility. She needs support to walk. Her aunt is currently taking care of her, cooking her meals and helping her with the house chores. She had told the Court that you had called her from the remand centre and threatened her with further violence if she remarries. She fears that you will continue with further family violence if you are released from the prison.

[13] The victim also gave evidence of the impact of the family violence on her children. Your son was distressed to see his mother seriously injured by you. His school performance dropped and subsequently he was moved to the island of Koro to live with his aunt. Your young daughter had to be looked after by relatives when her mother was hospitalized.

[14] The Court is also mindful of the pre-sentencing counselling report on you. You agreed to undergo counselling by the Medical Services Pacific. A report was compiled by a qualified counsellor. The counsellor also gave evidence at the sentencing hearing. You personally addressed the Court. You have offered to take responsibility for your conduct but you claim that you are also a victim. You suspected your spouse was unfaithful and you vented your anger by resorting to violence. You hold a view that you are in control and superior to your wife. You feel that you can control your wife and teach her a lesson using violence. You still blame your wife for the violence that you inflicted on her. At this stage the counsellor has ranked you 5 in a scale of 1 to 10 for a willingness to change your behaviour towards your wife.

[15] The most compelling mitigating factor is that you entered early guilty pleas consistent with your admissions to police. You have made an effort to address your behaviour by undergoing counselling. For these factors I give you a discount of 1 ½ years. Further, I give you a discount of 6 months for your previous good character.

[16] The courts will never condone family violence. Family violence must be denounced. The primary purpose of sentence is deterrence, both special and general. Custodial sentence is inevitable in cases where a weapon is used to inflict physical injuries to the victim.

[17] This was a bad case of family violence where the victim was pursued and subjected to further serious violence after she had obtained a domestic violence restraining order against her perpetrator. The aggravating factors are:

• Breach of trust arising from family violence.
• Exposing the victim’s juvenile son to family violence.
• Violence was repeated.
• The second episode of violence occurred while you were on bail.
• Weapons were used – a stick on the first occasion and a cane knife on the second occasion.
• Planning was involved in the case of the second assault – prior call was made to identify the location of the victim and a weapon was concealed inside the overalls.
• Gravity of the physical injuries sustained by the victim.
• Psychological trauma suffered by the victim and her juvenile son.
  

[18] Finally, you have been in custody on remand since 1 October 2017 – 10 months. I make a downward adjustment to your sentence to reflect your remand period.

[19] Taking all these factors into account, I sentence you as follows:

Assault Causing Actual Bodily Harm - 6 months’ imprisonment.

Act with Intent to Cause Grievous Harm - 3 years’ imprisonment.

Breaching a DVRO - 3 months’ imprisonment.

[20] Since you have pleaded guilty and has made an effort to deal with your violent behaviour, I make the sentences concurrent. I am also mindful of the totality principle. The total effective sentence is 3 years’ imprisonment. Suspension is inappropriate. I fix a non-parole period of 2 years.

[21] The interim domestic violence restraining order with standard no contact and non-molestation conditions issued for the safety and wellbeing of the victim and her two children is made permanent. The no contact condition only applies to the victim, your spouse. This order will remain in place until further order from the High Court, Family Division.

........................................................
Hon. Mr Justice Daniel Goundar

Solicitors:

Office of the Director of Public Prosecutions for the State

Office of the Legal Aid Commission for the Accused