State v Veimateyaki [2022] FJHC 111; HAC129.2021 (11 March 2022)

IN THE HIGH COURT OF FIJI

AT SUVA

[CRIMINAL JURISDICTION]

CRIMINAL CASE NO. HAC 129 OF 2021

STATE

V

LEMEKI VEIMATEYAKI

Counsel: Ms S Shameem for the State

Mr K Skibber for the Accused

Date of Hearing: 4 March 2022
Date of Sentence: 11 March 2022

SENTENCE

[1] The Accused has entered an early guilty plea to a charge of act with intent to cause grievous harm.

[2] The victim is the spouse of the Accused. They have been married for more than thirty years. He is in his late fifties. She is in her mid-fifties. Together they have a grown up son.

[3] The Accused is now retired. Before retirement he worked as a welder in a government department. The victim is a housewife and is financially dependent on the Accused.

[4] On the day of the incident (21 April 2021), the Accused told the victim to accompany him to their neighbour’s house for a drink. While drinking at their neighbour’s house the couple had an argument regarding their past relationship issues. The Accused lost his temper and hit the victim on the head with a metal aluminum rod multiple times. He also punched her face and cheek and used the rod to hit her back and then kicked her stomach. He then left her.

[5] Another neighbour saw the victim sitting outside the house, crying. This neighbour brought the victim to her house to change her clothes as she was covered in blood. This is when the police came and took the victim to the hospital.

[6] The victim was medically examined on the same day. She sustained the following injuries:

1. Laceration and swelling on the head which was 4 cm – 6 cm in diameter and around 1 cm deep with a dirty looking wound and likely hematoma.
2. Cervical vertebra 7 (C7) was tender to palpate.
3. Extremities of the left scapular area was tender with bruises and decreased range of motion.
4. Left deltoid area was noted to be tender with bruises.
5. Generalized tenderness noted on abdominal examination with deep palpation.
6. Conjunctival hemorrhage with swelling around the right eye.

[7] On 29 April 2021, the Accused voluntarily surrendered himself at the Nakasi Police Station. He was detained, charged and produced in the Magistrates’ Court the following day when he was released on bail.

[8] After the incident the victim reconciled with the Accused. She wrote to the Office of the Director of Public Prosecutions to withdraw her complaint, but the Director quite rightly decided to continue with the prosecution as domestic violence is no longer a reconcilable offence. On the issue of reconciliation in domestic violence cases, I endorse the views of Shameem J in State v Chandra [2005] FJHC 30; HAA0005D.2005S (21 February 2005):

If this was a case of domestic violence then more care should have been exercised to ensure that justice was done. Even in the most serious of cases, women who are the victims of domestic violence are under considerable pressure to reconcile with the accused. It is the court’s duty to ensure that such pressure does not result in an injustice because of the weak bargaining power that women have in society and in the family. In such cases, the facts must be read, medical certificates tendered, and the complainant questioned about the outcome she really desires from the court system. If she has received permanent or serious injury, the matter should proceed to trial without use of the section 163 reconciliation procedure.

[9] The offence is objectively serious. The maximum penalty for act with intent to cause grievous harm is life imprisonment. The tariff range from 2 to 5 years imprisonment, depending on the nature of the weapon used, the duration of the assault and the seriousness of the injuries sustained by the victim (State v Mokubula<160;[2003] FJHC 16HC 164; HAA0052J.2003S (23 December 2003)). The purpose of sentence is deterrence, both special and general, especially if the offence is domestic violence.

[10] In Rajesh Kumar v State Crim. App. No. HAA0032 of 1998L, the offender seriously injured his spouse using a cane knife after suspecting her of havi extra-marital affairs. In dismissing an appeal against a sentence of 3 ½ years’8217;’ imprisonment for the offence of act with intent to cause grievous harm, Madraiwiwi J said:

Parties in a marital relationship or otherwise need to be discouraged from using any form of violence to satisfy their feelings of hurt.

[11] In State v Kailoma [2018] FJHC 763; HAC46.207 & HAC63.2017 (21 August 2018), the offender who had a previous history of domestic violence caused serious injuries to his spouse using a cane knife in breach of a domestic violence restraining order. In sentencing the offender to a total term of 3 years imprisonment the court said at [16]:

The courts will never condone family violencmily viol violence must be denou The primary pary purpose of sentence is deterrence, both special and general. Custodial see is inevitable in cases where a weapon is used to inflict physical injuries to the victim.ctim.

[12] In State v Vucui [2FJHC 493; HAC63.2013.2016 (7 July 2017) Rajasinghe J said at [3]:

Assault on women, specially (sic) within their ownstic environment is one of the worst form of physical assaults. Such offence undoubtedly caly causes adverse physical and psychological trauma in the life of the victim. Therefore, the court in sentencing offender of this nature is required to adopt a deterrence approach in order to deter offenders or other persons from committing offences of the same or similar nature and protect the community from offenders of this nature.

[13] In the present case, the mitigating factors are that the Accused has expressed remorse by surrendering himself to police and by pleading guilty to the charge at the first opportunity. He is a first time offender. He is married to the victim and the victim wishes to continue her relationship with him. There is no evidence of previous history of domestic violence.

[14] However, the attack on the victim was unprovoked. The violence was fueled by alcohol. A weapon was used and the victim sustained physical injuries to her body.

[15] I pick 2 years imprisonment as my starting point. I add one year for the aggravating factors and deduct 2 years for the mitigating factors.

[16] The Accused is convicted and sentenced to 12 months imprisonment. I have decided against suspension of sentence. The crime of domestic violence must be denounced.

[17] A permanent domestic violence restraining order with standard non-molestation conditions is issued against the Accused for the protection of the victim.

[18] I direct the Registry to bring a copy of this sentence to the attention of the Director, Social Welfare to assist the victim during the period the Accused serves his sentence.

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

Solicitors:
Office of the Director of Public Prosecutions for the State
Legal Aid Commission for the Accused