R v Fatani [2004] TOLawRp 51; [2004] Tonga LR 351 (15 October 2004)

IN THE SUPREME COURT OF TONGA

R

v

Fatani

Supreme Court, Nuku'alofa
McElrea J
CR 300/2003

17 September 2004; 15 October 2004

Sentencing – guilty of bodily harm on wife – sentence of imprisonment as deterrent

On 29 November 2001 the accused and his wife had been to a dance. When they returned home the wife fell asleep and woke to the accused kicking her. The medical evidence showed that the complainant suffered two black eyes (eyes closed but vision intact), cuts to her right cheek and right upper lip, a tooth broken through the enamel, a bony fracture of the right jaw, and a problem with closing her jaws. The doctor summed up her that injuries by saying that they were serious but not life-threatening, and were consistent with force from a heavy blunt object being exerted on her face many times. The accused was charged with causing grievous bodily harm contrary to section 106 of the Criminal Offences Act but was found guilty after trial of causing bodily harm under section 107 of the same Act.

Held:

1. It was important that the sentence imposed sent the right message to other men, namely that those who beat their wives and cause serious injury can expect to go to prison. The deterrent aspect of sentencing was an important one and a sentence of imprisonment was also required to denounce strongly this type of conduct on behalf of all society, and to try and protect the community by making it a safer place for women and other vulnerable people.

2. A sentence of 10 months imprisonment was imposed. After the accused served five months, the remaining five were to be suspended for a period of two years. That suspension was on condition that the accused was under the supervision of a probation officer for that period, and that he attended any programme directed by the probation officer.

Statute considered:

Criminal Offences Act (Cap 18)

Counsel for the Crown: Mr Sisifa
Defendant in person

Sentencing Remarks

The accused was charged with causing grievous bodily harm contrary to section 106 of the Criminal Offences Act but was found guilty after trial of causing bodily harm under section 107 of the same Act. The allegation was that the accused on 29 November 2001 caused (grievous) bodily harm to his wife, Siangahu Fatani, by repeatedly punching her about the eyes and mouth.

In finding the accused Guilty I accepted the evidence of his wife in preference to that of the accused. I can summarise the events in question for sentencing purposes in this way. The accused and his wife had been to a dance. They are Mormons and so I assume no alcohol was consumed. When they got home his wife got changed to go to bed while the accused set about playing cards by himself. His wife came back in the living room to try and sleep because she said it was too hot in the bedroom and then she was four months pregnant at the time. She did go to sleep but she was woken by her husband kicking her thigh. He told her to go back into the bedroom and when she didn't do so he started slapping her in the face while she was in a sitting up position. He was shouting at her about some amplifier or stereo which had been lent to a relative, and he was obviously upset about that.

Although the accused was hitting his wife with an open hand and not with a closed fist, he used considerable violence and caused a lot of pain and suffering. The complainant gave evidence that her mouth was bleeding and her face was swollen so that she could not talk and could hardly see. In addition her golden tooth was broken and her jaw was fractured. Her eyes were swollen as well. She estimated that this assault went on for about eight minutes but I accept that even a short duration of time would have seemed very much longer and I cannot put too much weight on that estimate.

The complainant managed to crawl out of the house and call for help. The accused's uncle lived nearby and his wife came first to her aid. They took her to the hospital where she remained for five or six days before she was discharged. In itself that indicates the seriousness of her injuries. The medical evidence showed that the complainant suffered two black eyes (eyes closed but vision intact), cuts to her right cheek and right upper lip, a tooth broken through the enamel, a bony fracture of the right jaw, and a problem with closing her jaws. The doctor summed up her that injuries by saying that they were serious but not life-threatening, and were consistent with force from a heavy blunt object being exerted on her face many times.

I found that these injuries constituted bodily harm but not grievous harm as defined in section 106. They were nevertheless serious injuries.

The complainant accepted that she had scratched her husband's chest and thrown a lamp at him, but I am satisfied that this was done only in self defence after the attack had started.

The aggravating factors in this case are as follows:

1. The attack was entirely unprovoked.

2. It occurred in the complainant's own home where she was entitled to feel safe, especially at the hands of her husband.

3. The complainant was a vulnerable person, being a woman four months pregnant.

4. The attack was a sustained one over a period of several minutes.

5. The injuries inflicted were serious and resulted in his wife being hospitalised for several days.

It is significant that the accused said by way of defence at trial that they had a fight which she started. He seemed to think that was all right for him to respond in this manner although he alleged it was only three or four slaps. The accused needs to be told in no uncertain terms that no man is entitled to strike his wife unless this is really necessary as self defence - which will not often apply, because the first obligation is to end the argument by walking away from it.

A probation report prepared for sentencing purposes lists certain factors that can be treated as mitigation in this case:

1. The accused has no previous convictions in Tonga although he is aged 41 years. (He does however have a conviction for murder in the United States from where he was deported after serving a nine months sentence of imprisonment; he must have been very young at that time.)

2. He is a hard-working man and attends his church.

3. He has apologised to his wife, is remorseful and promises to change his ways.

In Court today the accused repeated his apology and his expression of remorse. He said that nothing like this would happen again. He confirmed that he is now engaged in church activities and a youth programme.

When Mr Kefu opened the case for the Crown at trial he commenced by saying that this was "a rare case of domestic violence brought to court for criminal sanction". Such cases are so rare that there appears to be no case law providing guidance for sentencing judges dealing with cases of domestic violence. It is most unlikely that this situation is due to the absence of domestic violence in the Kingdom of Tonga. There are other, more probable, explanations - such as the unwillingness of most wives or female partners in many countries to lay charges with the police, or (even where that is done) to see the matter through as far as Court.

In these circumstances it is important that the sentence imposed in this case sends the right message to other men, namely that those who beat their wives and cause serious injury can expect to go to prison. In this case the deterrent aspect of sentencing is an important one - but I believe that a sentence of imprisonment is also required to denounce strongly this type of conduct on behalf of all society, and to try and protect the community by making it a safer place for women and other vulnerable people.

Bringing all of those matters together I consider that a sentence of imprisonment is required here and I impose a sentence of 10 months imprisonment. After the accused has served half of that, i.e. five months, the remaining half is suspended for a period of two years. That suspension is on condition that the accused is under the supervision of a probation officer for that period, and that he attends any programme directed by the probation officer.

I impose that sentence having regard to the importance of sending the right message to this defendant and to others, and having regard especially to the five serious matters listed as aggravating factors above.