IN THE HIGH COURT OF FIJI
At Labasa
Appellate Jurisdiction

CRIMINAL APPEAL NO. 0019 OF 1995

BETWEEN:

RUPENI WAQANITOGA
Appellant

AND:

THE STATE
Respondent

Appellant in Person
Ms. L. Laveti for Respondent

JUDGMENT

On the 13th of March 1995 the appellant was convicted by the Savusavu Magistrate Court after he pleaded 'guilty' to an offence of Act With Intent To Cause Grievous Harm in that he had stabbed the complainant with a broken beer bottle during the course of a fight.

In mitigation the appellant stated that he too had received injuries in the fight and further that reconciliation had been effected between the parties as evidenced by a hand-written letter in the Fijian language which is included in the certified record of proceedings.

The learned trial magistrate in sentencing the appellant to 6 months imprisonment merely said: 

"Accused has 10 previous convictions. He has used a beer bottle to attack the complainant."

No mention is made of the appellant's plea of 'guilty' nor of the reconciliation that had been effected between the parties. Neither were any enquiries made as to the nature and extent of the appellant's injuries.

It is not at all surprising therefore that in the appellant's appeal against the sentence imposed the grounds included:

(1)	... that the learned trial magistrate ... failed to accept or acknowledge that "reconciliation through Fijian Traditional Protocol have eventuated by the chiefs and elders of the two villages ..."

and

(2)	... the learned trial magistrate failed to consider the fact that "(the appellant) was severely injured."

In this regard it may be noted that it fell upon this Court at the hearing of the appeal to obtain an English translation of the letter evidencing the reconciliation (marked Ex.D2(b)), and furthermore upon enquiry, the appellant produced his relevant medical report dated 25th October 1994 (the incident having occurred on the night of the 22nd of October 1994) and which was received without objection and marked Ex.D-1.

The letter dated 8th March 1995 which was written by a village chief "(for) those injured", records:

"Both parties presented their traditional reconciliation and resolved the incident between Natewa and Muana which resulted in the injury."

and ended with:

"(a)	... request that the case be struck out as we have reconciled."

As for the appellant's medical report, this indicates that the appellant sustained bruises to the left and right sides of the head consistent with being "hit by a hard blunt weapon."

Even accepting that the offence with which the appellant was charged is strictly irreconcilable as a matter of law (See: Section 163 C.P.C.) nevertheless, a magistrate dealing with offences that occur in rural or village settings would do well to pay careful attention to and to acknowledge any traditional reconciliation that may have been genuinely effected between the parties when approaching the difficult question of an appropriate sentence.

Furthermore where injuries have been sustained by both parties to a fight and the facts outlined raises the possibility of 'self-defence' as in this case, then there is even greater reason for recognising and rewarding a plea of 'guilty'.

In all the circumstances whilst I am satisfied that the appellant has a 'grievance' I cannot accept that a sentence of 6 months imprisonment for an offence which carries a maximum sentence of life imprisonment can be faulted for its excessive harshness. On the contrary, the sentence if anything leans towards the side of leniency.

The appeal against sentence is accordingly dismissed.

(D.V. Fatiaki)
JUDGE

At Labasa,
17th July, 1995.
HAA0019J.95B