Ioobi v Republic [2016] KIHC 4; Criminal Appeal 7 of 2016 (6 June 2016)

IN THE HIGH COURT OF KIRIBATI 2016

HIGH COURT CRIMINAL APPEAL NO. 7 OF 2016
(HELD AT KIRITIMATI ISLAND)
BETWEEN

TEOTIRAOI IOOBI
APPELLANT

AND

THE REPUBLIC
RESPONDENT

Before: Hon Chief Justice Sir John Muria

3 June 2016

Mr Reiati Temaua for Applicant
Ms Pauline Beiatau for Respondent

JUDGMENT

Muria, CJ: By his Notice of Appeal, the appellant, Teotiraoi Ioobi, appealed against the decision of the Single Magistrate made on 29 January 2016 in Kiritimati Island in Criminal Case No. 11 of 2016. The appellant raised three grounds of appeal, namely:

1. The Magistrate erred in law to proceed with the matter and imposed sentence disregarding the application made by the Police and the Complainant to withdraw the matter;
   

2. The Magistrate failed to advise the Appellant to mitigate his sentence;

3. The sentence imposed was manifestly excessive.

The first ground of appeal is said to be in support of the appeal against conviction. The other two grounds are in support of the appeal against sentence.

BRIEF BACKGROUND

The case arose out of an incident of domestic violence perpetrated by the appellant (husband) against the victim (the appellant’s wife). In the course of the altercation, the appellant assaulted the victim, his wife.

The victim reported the matter to the police who arrested the appellant and charged him with one (1) count of Domestic Violence contrary to section 33(1)(a) of Te Rau N Te Mwenga Act and one (1) count of Common Assault contrary to section 237 of the Penal Code. The appellant pleaded guilty to both charges and the Single Magistrate convicted him and sentenced him to three (3) months’ imprisonment on each count. The sentences were to run consecutively, that is, six months in total.

With that background, I shall now deal with the grounds of appeal.

Ground 1

This ground complains that the Single Magistrate was wrong in law not to accept the request by the victim (wife) to withdraw the case against the appellant (her husband). Mr Temaua of Counsel for the appellant relied on section 37 of the Act to support the appellant’s case. Counsel argued that the Single Magistrate was wrong in law to disregard the victim’s request for the withdrawal of the complaint against her husband (the appellant). Ms Beiatau of Counsel for the Republic submitted the Single Magistrate was correct to proceedwith the case after considering the victim’s request for withdrawal. The Court minutes, submitted Counsel, supported the suggestion that the Single Magistrate gave due considerations to the victim’s request before deciding to reject it.

The Rau N Te Mwenga Act 2014 under which the appellant was charged, is a new law recently passed by Parliament to bring domestic violence into the realm of criminally punishable conduct and behavior on the part of the perpetrator. Domestic violence was once regarded solely as a domestic matter in the family, usually between the husband and wife. The Act now expressly provides that domestic violence is a criminal offence and to be treated as such once it is reported to the police.

Section 33(1)(a) of the Act under which the appellant was charged provides as follows:

“33(1) A person who –

(a) engages in any conduct set out in section 4;

(b) breaches a protection order;

(c) fails to comply with a Police Safety Order;

commits a domestic violence offence.

(2) A person who commits a domestic violence offence referred to in subsection (1) shall be punished by up to a maximum term of 6 months imprisonment or a fine of up to $250.

(3) A person who commits a domestic violence referred to in subsection (1) for a second time shall be punished by up to a maximum term of 12 months imprisonment or a fine of up to $500 or both.

(4) A person who commits a domestic violence offence referred to in subsection (1) for a third time or more shall be punished by up to a maximum term of 3 years imprisonment with a fine of up to $1,000 or both.

(5) It is not a defence to a domestic violence offence under subsection (1) that the respondent has paid compensation or reparation to the complainant or to the complainant’s family.

(6) If a person instigates, counsels or procures another person to commit an act of domestic violence that person is taken to have committed the act and subsection (1) applies.

The Act also provides that the victim or complainant can apply to the Court to withdraw the complaint against the accused person. When such application is made, the Court will have to consider the reasons relied upon for the request for withdrawal. But the Court is not obliged to allow a complaint of domestic violence to be withdrawn simply because the complainant wishes to withdraw it. As the complaint is a criminal matter, the Court will have to hear the police or prosecution on any objection to the request for withdrawal of the complaint. The decision whether or not to allow the complaint to be withdrawn is in the discretion of the Court.

In the present case the victim requested the complaint to be withdrawn. The primary reason for seeking to withdraw the complaint was that the appellant had apologized to the victim (wife) for what he did to her and that he assured her that he would not repeat what he did to her. The victim had also indicated to the Court that the appellant would quit drinking alcohol. Counsel for the appellant submitted that the Court disregarded the factors mentioned by the victim and refused the victim’s request for withdrawal of the case against the appellant.

The appellant’s argument appears to premise on the suggestion that once the complainant requests a withdrawal of the complaint, the Court must consider the reasons for requesting a withdrawal and is obliged to grant the requested withdrawal. It must be noted that the Court retains the discretion whether to allow or refuse the request for withdrawal of a complainant of domestic violence.

The record of the Court proceedings in the Court below shows that it was the police who informed the Court that the victim wished to withdraw her complaint. The victim subsequently then told the Court that the reasons for seeking to withdraw the complaint against the appellant (husband) were:

“My husband had apologized to me and said that this would never happen again. He also said that he will stop drinking”.

After hearing the prosecutor and the victim, the Single Magistrate decided that the request for withdrawal of the complaint would not be granted. Two reasons were given by the Single Magistrate for refusing to grant the request for withdrawal. First, the offence was a serious one and secondly, the accused was the appellant and the case could still proceed against him without the complainant.

In the view of this Court, there is nothing wrong with the decision of the Single Magistrate in refusing to grant the request by the victim to withdraw the case against the appellant. It is not obligatory for the Court to accept a request for withdrawal of a complaint of domestic violence against an accused person. The fact that the accused reconciled and made amends with the victim does not prevent the Court from dealing with a complaint against the accused once the complaint is laid before the Court. The Court can take account of an apology, reconciliation, and a promise of good behavior for the purpose of mitigation of sentences.

For the above reasons, the appeal against conviction in ground one (1) is rejected.

Ground 2 complains that the Single Magistrate failed to advise the appellant to mitigate his sentence. The record plainly shows that the Court gave the appellant the opportunity to mitigate his sentence. The appellant in mitigation asked the Court to be lenient to him since he had a small child, that he was fully drunk when he assaulted the victim (wife) and that he did not know the reason why he assaulted his wife.

The appellant needed no advice to mitigate his sentence in this case. The Court gave him the opportunity to be heard in mitigation and he did speak on his own behalf inmitigation.

This ground is also rejected.

Ground 3 complains that the sentences were manifestly excessive.
Mr Temaua submitted that the Single Magistrate failed to take into account that the following mitigating factors, namely, the appellant was a first offender, he pleaded guilty to the offences at the earliest opportunity, that the appellant was the sole breadwinner in the family, the appellant has a
3-year old child, and that he apologized and was remorseful for what he did.

The appellant was given the opportunity to be heard in mitigation and all that he asked the Court was to be lenient to him because he had a small child and that he did not know what he did because he was fully intoxicated. It was the victim (wife) who informed the Court that he was sorry for what he did to her. It was the victim (wife) who informed the Court that he promised not to do what he did to her again: it was the victim (wife) who told the Court that he would stop drinking alcohol. One would have expected that as a remorseful husband he would be the one, being given the opportunity, to tell the Court that he was sorry for what he did, that he promised not to do what he did to his wife again and that he would quit drinking alcohol if that was the evil that triggered him to do what he did. Instead he let the victim (wife) did his bidding for him.

As to his priors, the prosecutor told the Court that the appellant had no previous conviction. The appellant pleaded guilty in Court to both counts. The maximum for each of the offences was six months’ imprisonment.

Taking all the above considerations into account, a three month imprisonment for each offence cannot be said to be out of order or manifestly excessive. A guilty plea would account for one-third reduction in sentence. An apology and reconciliation together with previous good character would probably earn the appellant a further small reduction in sentence. Weigh those factors against the facts of the case itself, in my judgment, the appellant was lucky to have received three (3) months’ sentence on each count, especially as found in this case where the appellant was angry, punched the victim (wife) on the face with closed fist, resulting in her face covered with blood. He pulled her hair, kicked her and dragged her on the ground. The victim had to be taken to the hospital to be treated. Her nose was bleeding and swollen, let alone the pain she had to undergo.

The seriousness which the Court takes of the offence of domestic violence is clearly reflected in her Worship’s remarks before she sentenced the appellant in this case. The Single Magistrate had this to say:

“This is an offence which the law regarded as a serious offence, since it relates to abusing and the ill-treatment of a woman. A woman is a person who is incapable and physically weak to match the strength of a man. It is not acceptable for the accused to assert that he was drunk and thus do not know what he had done because he was drunk and these happened when he was drunk. The law states that intoxication could not be your defence. The law do not accept that word so to lessen your offence or to accept it as an aggravating factor. The Court found the accused guilty as charged. The fine for this offence is stated in section 33(a) of Te Rau N Te Mwenga Act 2014, six months’ imprisonment, fine $250.00. The penalty for common assault in contrary to section 273 of the Penal Code, Chapter 67 is six months’ imprisonment. The accused should be given a penalty since the offence he committed is a serious offence. He should be imprisoned so that that could teach him a lesson in not doing this kind of offence later on”.

This Court endorses those remarks made by the Single Magistrate.

A three (3) months’ sentence can hardly be regarded as manifestly excessive in the circumstances of this case. This Court affirms the three (3) months’ sentence on each count.

The only remaining question, although not raised by the appellant, is whether the sentences be made to be served consecutively or concurrently. The learned Director of Public Prosecutionhas suggested that the sentences should be made concurrent. I agree.

The two offences arose out of the same incident or set of facts and as such they should be made concurrent to each other. In the exercise of the Court’s power on appeal, the sentences are to be served concurrently with each other. Thus the appellant is sentenced to three months’ imprisonment on each count which sentences are to be served concurrently. The appellant should serve three months in total.

The appellant had served two months of his sentences already before taking his bail. I feel he now has the taste of prison and realizes that domestic violence is no longer a domestic matter, but it is an offence against the law.

I exercise the Court’s indulgence and order that the appellant need not serve the remaining one month imprisonment.

Dated the 6^th day of June 2016

SIR JOHN MURIA

Chief Justice