Manuwave v Reginam [1977] FJSC 77; Criminal Appeal 129 of 1977 (25 November 1977)

THE SUPREME COURT OF FIJI
APPELLATE JURISDICTION

Criminal Appeal No. 129 of 1977

Between:

JOWELI MANUWAVE

and

REGINAM

JUDGMENT

On the 28th April 1977 at Nausori Magistrates Court the appellant with two others (hereinafter referred to as the first and second accused) was convicted after trial of criminal trespass contrary to section 218(1)(a) of the Penal Code and of two offences of assault occasioning actual bodily harm contrary to section 277 of the Penal Code, and the appellant was sentenced to a total term of twelve months' imprisonment. He has appealed against conviction and sentence.

The brief facts of the case are that on the 8th April 1977 the first accused who was in a drunken and belligerent mood entered the compound of a neighbour, punched the woman who lived there in the face, threw missiles at her son and punched him also. Another member of the neighbour's family threw a knife to the son, and upon seeing that he was armed two of the first accused's companions, namely the second accused and the appellant, also trespassed into the compound for the purpose of holding the son and preventing him using the knife - and during this latter fracas the appellant punched the woman on her back and also punched the son who was in possession of the knife.

When interviewed by the police the appellant stated that he only intervened because the son was "trying to chop" the first accused and that he attempted to take the knife away from the son. At his trial the appellant stated that he only went to stop the fight, and he denied punching the woman, but there was ample evidence on which the trial Magistrate found the appellant guilty of all three offences and he was rightly convicted. The appeal against conviction is accordingly dismissed.

The trial Magistrate quite properly sentenced the first accused, who was the aggressor and responsible for the incident, to an overall term of twelve months' imprisonment.

In regard to the second accused the trial Magistrate stated that he only held the son to prevent him using the knife, and in these circumstances he saw fit to impose a fine of sixty five dollars.

However when he came to deal with the appellant the trial Magistrate imposed on him the same sentence as the first accused, which in the circumstances was clearly excessive. The appellant, like the second accused, only took part for the purpose of preventing the son using the knife - although his conduct was aggravated by the fact that he punched the woman of the house and her son in the process.

He has already suffered more than enough punishment and I reduce the sentence imposed on him to a term of imprisonment which will permit of his immediate release.

Grant, C.J.
Chief Justice

Suva
25th November 1977