State v Disaba [2012] FJMC 196; Criminal Case 1040.2012 (17 August 2012)

IN THE MAGISTRATE'S COURT OF THE FIJI ISLANDS
AT SUVA

CRIMINAL CASE NO: 1040/2012

THE STATE

V

KESAIA DISABA

&

RATU AISEA VOLAVOLA

Prosecution: - Cpl Reddy, Police Prosecutor.
Both Accused: - In person.

SENTENCE

1. Kesaia Disaba and Ratu Aisea Volavola, initially you were charged with the following offence:
   

Statement of Offence

Grievous Harm: contrary to section 258 of the Crimes Decree No 44 of 2009.

Particulars of Offence

Kesaia Disaba and Ratu Aisea Volavola, on 23rd day of July 2012 at Savura Road, Wailoku in the Central Division unlawfully and maliciously did grievous harm to Adi Alisi Qalirea.

2. The offence is an indictable offence which is also triable summarily. Both of you opted for a Magistrate's Court trial. You waived the right to have a counsel in court.
   
3. On 30.07.2012 you pleaded 'Guilty' to the charge. The Court is satisfied that your plea is free from any influence.
   
4. Following facts were established in the Summery of Facts presented by the prosecution. The first accused is the wife of the second accused. The victim of this case has been the sister in law of the first accused. She is 21 and mentally handicapped. You share the same residence.
   
5. Your neighbour has heard the cries of the victim at around 4.30 in the afternoon. When she looked out from the window she has seen the first accused assaulting the victim with a hose-pipe. Shortly the second accused who is the brother of the victim joined the first accused and started assaulting with the same hose-pipe. The neighbour reported this matter to the police and both of you were arrested. Both admitted the allegation in their caution interview.
   
6. The victim was later produced before the doctor for examination. The state has produced the medical report of the victim as a part of the Summery of Facts. As per the medical report the doctor has observed multiple bruises and imprints of hose-pipe on her body. The professional opinion confirms the fact that the victim was severely beaten by the accused persons.
   
7. Section 258 of the Crimes Decree 2009 states that any person commits an offence if he or she unlawfully and maliciously does grievous harm to another person.
   
8. The interpretation Section 4 (1) of the Crimes Decree states '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;
     
9. View of this Court is that the injuries of the victim do not cover under the above interpretation. But it falls within the interpretation of 'Bodily Harm'.
   
10. At this point it is prudent to consider the legal interpretation of the term 'Harm'.
    

"harm" means any bodily hurt, disease or disorder (including harm to a person's mental health) whether permanent or temporary, and includes unconsciousness, pain, disfigurement, infection with a disease and physical contact with a person that the person might reasonably object to in the circumstances (whether or not the person was aware of it at the time);

11. Section 160(2) of the Criminal Procedure Decree 2009 provides provisions to convict a person for a minor offence although he was not charged with it. It says,
    

s.160 (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 nargcharged with it.

12. Having considered the facts I am of the view that each accused can nvicted for the offence of e of 'Assault Causing Actual Bodily Harm'. Therefore the Court convicts each of you for the offence under section 275 of the Crimes Decree 2009.
    
13. The maximum sentence for the offence is 5 years of imprisonment.
    

Tariff for the Offence

14. The Tariff for 'Assault Occasioning Actual Bodily Harm' under Section 245 of the Penal Code (which is now repealed), varies from a suspended sentence to 09 months imprisonment. (per Goundar J in Jonethani Sereka v State [2008]HAA 027/08S, 25 APR 2008)
    
15. This Court called a brief background report from the Social Welfare officer of the southern region. Unfortunately it was informed that she was unable to provide a full background report due to the unavailability of the accused persons. She has found that the victim is now looked after by another care giver who is also a tenant of the property. The victim is well looked after by that lady.
    
16. The report informs that the victim was left with the second accused who is her brother. Her other siblings and mother have left their responsibilities.
    
17. On the other hand both of you informed Court that you in fact looked after her. Further you said that this assault occurred due to an unmanageable behaviour of the victim. There is no material before this Court to conclude that the victim is a person of such nature. Even though she has such condition it is the duty of the guardians to provide her protection and due care.
    

Aggravating Factors

18. The aggravating features of the offence are,
    
    1. The victim had been a mentally disabled female. The victim was vulnerable due to her nature and the domestic relationship;
       
    2. It appears that there was no provocation on the part of the victim;
       
    3. You have used a hose-pipe to assault the victim;
       
    4. Multiple injuries indicate that you have assaulted her many times.
       

Mitigating Factors

19. In mitigation both of you stated similar circumstances, you are 22 and 23 years old; first offenders; sole providers of the victim; and you are now remorseful for what happened.
    
20. The circumstances of this offence highly warrant an immediate custodial sentence. On the other hand the Court has to consider the plight of the mentally handicapped victim before imposing a custodial sentence to the accused persons. It appears from your submission in Court that both of you are still willing to look after the victim. This attitude gives some idea on the intention you had at the time of offending.
    
21. Therefore this Court would like to observe whether you comply with the said undertaking as per section 44(2) of the Sentencing and Penalties Decree 2009.
    
22. Kesaia Disaba and Ratu Aisea Volavola, proceedings of this case is hereby adjourned for a period of 3 years. Each of you has to undertake to ensure the wellbeing of the victim Adi Alisi Qalirea. The matter will be called after every three months and the Social Welfare Officer (Southern/Eastern) should submit a report to Court on the progress. Further both accused should attend to counselling sessions in the family division of this Court once a month.
    
23. Copies of this order are dispatched to relevant authorities in order to facilitate above conditions of the Court.
    
24. Court issues a permanent domestic violence restraining order to Kesaia Disaba and Ratu Aisea Volavola with standard non molestation conditions as per section 24(1)(b)(1) of the Domestic Violence Decree 2009 to further ensure the protection of the victim Adi Alisi Qalirea.
    
25. 28 days to appeal.
    

Pronounced in open Court,

Yohan Liyanage
Resident Magistrate

17th August 2012