Koro v Reginam [1977] FJSC 161; Criminal Appeal 112 of 1977 (18 November 1977)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA
APPELLATE JURISDICTION

Criminal Appeal No. 112 of 1977

BETWEEN

IOANE KORO
Appellant

AND

REGINAM
Respondent

Mr. M.T. Khan, Counsel for the Appellant
Mr. Ikbal Khan, Counsel for the Respondent

JUDGMENT

This is an appeal against a sentence of 9 months imprisonment imposed upon a husband who assaulted and injured his wife.

The appellant returned home late one evening, wakened his wife and beat her with his fists. Her jaw was broken in two places one of which was a compound fracture. She was detained in hospital but has made a good recovery.

The appellant who pleaded guilty urged in mitigation that his wife and he were still living together in the matrimonial home.

In passing sentence the learned magistrate remarked,

"Altogether too frequent an offence. Deterrent sentence manifestly necessary. Take into account first offender - 9 months imprisonment."

The appeal was filed along with an affidavit sworn by the appellant's de facto wife explaining that she has had seven children to the appellant between 1961 and 1975; that he has expressed remorse in Fijian style and has been a good husband; that the entire family depend upon him for maintenance, education, fees and so forth.

A reduction of sentence is urged on those grounds.

One argument against that form of mitigation is that had the appellant inflicted these injuries upon some third party the appellant's domestic obligations would not have an appreciable mitigating effect.

At p. 94 of Principles of Sentencing, the learned author, D.A. Thomas, refers to "domestic woundings". He says that the Court normally regards a deterrent sentence necessary in this kind of case even where the wife has been reconciled and wishes to have the husband back. At p. 95 he points out that where the element of premediation is lacking distinctions will be made on the basis of differences of intention. In the same volume at p.11 he says of domestic assaults and injuries,

"Paradoxically, it is not uncommon for such an incident to lead to an improvement in their relationship and the wife will often write to the Court asking for leniency. Generally the Court takes the view that despite these factors, and the probability that the marriage will be re-established on a sounder basis, a substantial sentence is necessary as a general deterrent against violence."

It is not many weeks since the same magistrate dealt with a similar offence. An appeal on very similar grounds was lodged against sentence and the magistrate was sympathetically moved to add some comments. My learned brother Stuart J. heard that appeal against sentence and reduced it. Exactly the same mode of appeal is being adopted in this case and I have conferred with my learned brother. It appears that the view could be canvassed that a man can brutally attack, seriously injure and incapacitate one of Her Majesty's subjects and may escape the serious punishment he deserves if the victim is his wife. In fact, it seems to be thought that if the wife and family absolutely depend on the aggressor husband his chances of avoiding punishment are greatly enhanced.

It would be wrong for the Courts to permit such notions to be canvassed. Aggressive husbands may be tempted to regard themselves as privileged from punishment for assaults upon their wives by reason of the latters' dependency on their husbands. Who will suffer most from the imprisonment? The husband would like to impress upon the Court that it will be the husband's family. Such an approach on the part of the Courts could be tantamount to giving licence to bullying husbands.

A wife who really needs the protection of the Court may be persuaded to try and discard it and to plead for her husband for the sake of the dependent children.

The responsibility for his conduct must rest upon the husband. If by reason of his crimes his family may be reduced to poverty the blame cannot be laid at the door of the Court which imprisons him.

Magistrates are more familiar than most with the prevalence of a particular type of crime in their areas. The magistrate in this case has dealt with such cases before.

In the circumstances his reasons for sentence bear particular credence.

The sentence is certainly not excessive.

The appeal is dismissed.

(Sgd.) J.T. Williams
JUDGE

LAUTOKA
18th November, 1977.

Messrs M.T. Khan & Co., for the Appellant
Director of Public Prosecutions for the Respondent

Date of Hearing: 4th November, 1977.