Appellant ison
Ms. A. Driu for Respondent
JUDGMENT
This is appellant's appeal against the sentence of six months' imprisonment imposed on him on his own plea by A. Kuver Esq. at Magistrate's
Court Labasa on 2 June 1997 for the offence of assault occasioning actual bodily harm contrary to section 245 of the Penal Code Cap. 17.
The appellant and complainant are husband and wife. He assaulted her because she came home late; she received certain injuries. She
then left home and spent the night "in the bush".
The appellant told this Court that he is 35 years old and has reconciled with his wife. There are two children of the marriage aged
5 and 2 years. He said he will not re-offend and that he has "suffered enough" by being in prison.
The learned State Counsel submitted that the fact of reconciliation was not considered by the learned Magistrate and it is her view
that he should have received a suspended sentence of imprisonment. She referred the Court to Chief Justice's judgment in regard to
effect of reconciliation in DIVENDRA BIJAY v STATE (Crim. App. HAA0030J.97B) delivered on 6 July 1997.
The record shows that when he was sentenced his wife was not present in Court. She told this Court that it is only when he drinks
"spirits" that he assaults her otherwise he is "good". She is a sickly woman; has no parents and they have no land. The appellant says that he has borrowed $300.00 to harvest cane but
is unable to cut cane because he is in prison.
The fact that the complainant is his wife does not give the appellant the licence to assault her. She has no house and no parents;
her brother does not want her. The children are suffering.
Husbands who assault their wives should not expect leniency from the Courts subject of course to certain mitigating factors. In this
case, evidently because the wife was not present the fact of reconciliation was not given due consideration by the learned Magistrate.
It is a reconcilable offence. On the aspect of reconciliation the following remarks of TIMOCI TUIVAGA C.J in DIVENDRA BIJAY (supra at p.6) are worth noting:
"The learned Magistrate took what appeared clearly to be an unorthodox approach to the sentencing process by virtually ignoring
established principles of sentencing. Gender sensitivity is apt in a suitable case and context but it should not be allowed to unduly
divert judicial officers from properly discharging their judicial function. That function requires them to judge every case according
to its own particular circumstances. Or put another way each case must be assessed and evaluated on its true merits. One should not
generalise and pluck pontifical sentiments from untested and unreferenced sources for sentencing purposes. This is important to safeguard
against the making of artificial and unreal adjudication."
In another domestic violence case of MOSESE GAUNAVOU and STATE (Crim. App. No. HAA0011J.96B 16.4.96) the Chief Justice remarked as follows and it should be borne in mind in dealing with cases
of this nature:
"It is always a concern for the court to try and help any family experiencing domestic difficulties to resolve its problems as
much as possible. It is for that reason that this court believes that it would be in the best interest of this family if the appellant,
the man of the house in this case, is not kept away from his family for too long."
I repeat here briefly what I said a few minutes earlier in a case of this nature and I would address the same to this appellant in
the hope that this will serve as a deterrent in future.
Now, putting on my 'hat' of a marriage officer, I must say that it is quite obvious that when the appellant assaulted his wife he had forgotten the marriage
vows which he took when he went through the religious ceremony of marriage. The taking of sacred vows is called in Hindi PANI-GRAHANA
and PRATIJNA and this is done with the right hand of the bride clasped by that of the bridegroom. One of the vows is the "taking of the seven steps" called SAPTA-PADI towards the end of the marriage ceremony. With a knot tied between the clothing of the bride and the bridegroom
to indicate fusion of two hearts and the union of two different families, the bride and bridegroom take seven steps symbolising entry
into married life. As they take each step they invoke the blessing of God for: food and nourishment, strength, wealth, education
and knowledge, children, health and love and friendship. Thus the bride and bridegroom are no longer two independent beings but one
integrated personality united by firm resolve to supplement and complement each other in every aspect of life. For a successful marriage
you two have to move together in the same direction like the wheels of a chariot. You cannot have the wheels going in different directions.
In this case the appellant has already served bulk of his sentence and is due for release on 1 October 1997. In all the circumstances
of this case bearing in mind the fact of reconciliation (which was not considered by the learned Magistrate) I do not consider that
he should serve the sentence any longer.
For the above reasons I set aside the sentence and substitute it with one which will allow him to be released from prison forthwith.
The appeal is allowed to the above extent.
D. Pathik
Judge
At Labasa
28 August 1997
Haa0035j.97b
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