State v Raqauqau [2012] FJMC 55; Criminal Case388.2012 (12 April 2012)

IN THE MAGISTRATE'S COURT AT NASINU

Criminal Case No: 388 of 2012

STATE

V

VILIAME RAQAUQAU

PC Ravi Narayan appeared for the prosecution.
The accused appeared in person.

SENTENCE

1. You, VILIAME RAQAUQAU, are here, to be sentenced on admission of guilt on your own accord for the following offences namely:

CHARGE:

Statement of Offence [a]

First Count

BREACHING DOMESTIC VIOLENCE RESTRAINING ORDER: Contrary to Section 77 of Domestic Violence Decree No. 44 of 2009.

Particulars of Offence [b]

VILIAME RAQAUQAU, on the 31st day of March, 2012 at Nasinu in the Central Division breached domestic violence restraining order issued by Nasinu Magistrates Court on 28/3/12 to 17/4/12.

2. I am satisfied with your plea is unequivocal and that you understand the repercussion of your plea. I convict you as charged.

3. According to the facts, (which you have admitted), you, Viliame Raqauqau, 45 years, unemployed of block C Flat 5 Cakau Housing, Newtown breached the domestic violence restraining order which was issued by this court in Case Number 136/2012. On the 31st day of March, 2012 at about 4.30 pm you came home drunk and damaged PW1's TV and all household items and the louver blade.

4. Maximum penalty is given in the section 77(1) of the Domestic Violence Decree 2009. It says;

"77.-(1) Any person who, having notice of a domestic violence restraining order by which they were bound, without reasonable excuse contravenes the order or part of the order, is guilty of a criminal offence and is liable on conviction -

(a) subject to paragraph (b), to a fine of $1,000 and a term of imprisonment of 12 months;

(b) if the person has previously been convicted of an offence of breach of a domestic violence restraining order, to a fine of $2,000 and a term of imprisonment of 12 months."

5. There is no tariff can be found for this offence.
6. There are no aggravating factors.

Mitigating Factors

7. In mitigation, you said that you are 45 years old, married with four children. You have reconciled with your wife. But she did not confirm it before this court. You admitted that DVRO was served to you but said the police officer did not explain it, he just said that this is an interim order. This court cannot accept that you did not know the DVRO and gravity of breach of these orders. I reckon that serving officer has adequately explained to you about the interim orders.

8. I am mindful of objectives of Domestic Violence Decree. Primary concern of the Decree is to stop violence and to protect vulnerable victims. It extends protection of victim's property and safety and well being of victim, children and extended families. Even the court can decide temporary custody of the children, properties and could impose urgent monetary relief on the assailant. In this case you destroyed all house hold items of victim. The victim is your wife. She bore four of your children. There household items were to support their livelihood. When she supported the application of Domestic Violence Case 136 of 2012, she told to this court there were constant physical and mental harassing by you and even you assaulted your children. The victim further stated her brother pays rent for your house. Considering those facts this court granted interim orders in 136 of 2012 case which are as follows;

a) The Respondent must not harass the applicant or children mentally or physically.

b) Respondent to stay 100 metres away from the applicant and the children.

c) The interim custody of the children to be with the applicant mother.

d) The Respondent must not remove, destroy any household items but he can take his personal belongings as he was temporarily quitted.

e) The respondent must not use any weapon on the applicant or the children.

f) The Respondent to quit the marital house forthwith

g) The Respondent to pay $40 per week ($10 per child) as urgent monetary relief to the applicant.

9. 17th of April 2012 date was given for your objections, but instead you breached the order by taking law into your hand. You did not comply any of these orders. In your mitigation you said you did not quit the house, instead you destroyed all household items and damaged the house (louver blades). Your act is some kind of challenge to the authority, our court system and the rule of law.

10. In State v S.T [2011] FJHC 135; HAD002.2011 (4 March 2011) His Lordship Justice Mr. Daniel Goundar has noted salient aspect of Domestic Violence Decree and current plight of its enforcement. I quote it for clarity;

"[14] This is rather an unfortunate state of affairs. The Domestic Violence Decree came into effect on 6 September 2010. But it seems to me that there is a lack of commitment to enforce the law by the law enforcement officers. This lack of commitment can defeat the clear objectives of the Domestic Violence Decree. The Domestic Violence Decree is designed to give greater protections to the victims of domestic violence who are generally women. Women victims are vulnerable. Most of them are financially depended on their spouses.

[15] Judicial experience has shown that they do not have equal bargaining power as their spouses. They are forced to reconcile in domestic violence cases because of cultural and social constrains placed on them. The Domestic Violence Decree is designed to take away those constrains and to empower them to live a life without violence.

[16] Police and judicial officers should remember that domestic violence offences are no longer reconcilable. When an accused informs the court that he has reconciled with his spouse in a domestic violence case, there is no longer a discretion to terminate the proceeding without implementing the provisions of the Domestic Violence Decree.

[17] In this case, by the time the application for restraining order was heard in the High Court, the victim was left with the accused without any protection against future violence on her.

[18] In future these occurrences must not occur and the police officers and the magistrates are urged to show genuine commitment to implement the Domestic Violence Decree." [ Above all the time emphasis is added and underlining is mine]

11. This High Court case gives some alarm to law enforcement officers. In line with these guidance, These orders were granted to protect the vulnerable victim but it seems to me it has gone in vain. You destroyed the property that is somebody's hard earned money. You should know it is hard to build a something than destroying it. Sometimes you take whole life to build something which you can destroy within a second. It seems to me you have not understood the value of peace life and property. The court notes that this domestic violence is not only in Fiji but it pervades all over the world. You said you have reconciled but this offence cannot be reconciled and it should be treated with some gravity. The reconciliation is not panacea for these types of offences. On the other hand the reconciliation is not confirmed and as Justice Gounder noted it may be pressure of social, economic and norms.

12. I therefore I pick 4 months imprisonment as the starting point for this offence. You saved court's resources and time. I reduce one month for your early plea and mitigation. You have six previous convictions, last one was in 2004. All these convictions were related to aggression such as Throwing objects, Damaging property and Drunk and Disorderly. The latter one is the cause for these offences even these domestic violences. Therefore, there is no chance for suspension of your sentence. You serve 3 months imprisonment forthwith.

13. Meantime I confirm the interim orders of Domestic Violence Case 136 of 2012 as you have admitted the violation of these orders. You are further warned to comply those orders after your release of this prison term.

14. You have 28 days to appeal against this order.

On 17th April 2012 at Nasinu Fiji Islands

Sumudu Premachandra [Mr.]
Resident Magistrate