IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0030J.97B

BETWEEN:

DAVENDRA BIJAY
s/o Mohan Lal
Appellant

AND:

STATE
Respondent

Mr. A. Kohli counsel for Appellant
Ms. L. Laveti counsel for Respondent

JUDGMENT

Appellant was on 2 June 1997 convicted on his own plea in the Labasa Magistrate's Court of the offence of assault occasioning actual bodily harm contrary to section 245 of the Penal Code and sentenced to 4 months' imprisonment. The particulars of the offence were that on 22 March, 1997 at Labasa appellant assaulted his wife, Uttra Wati d/o Bas Deo occasioning her actual bodily harm.

In passing sentence the learned Magistrate noted appellant's plea of guilty, that this was his first offence and that he and his wife had reconciled. The couple have three children, aged 14, 10 and 8. Appellant (37) was employed by Fiji Forest Industries Ltd. at Malau, Labasa.

Appellant is appealing against his sentence on the ground (i) that the sentence failed to take into consideration relevant factors relating to the case; and (ii) that the sentence was harsh and excessive and wrong in principle having regard to all the circumstances of the case.

On 6 June 1997 appellant's counsel filed an application for bail pending appeal against sentence. The application for bail was supported by an affidavit from the appellant and one from his wife.

In a 4 page Ruling on the application the learned Magistrate expressed his views on the affidavits in these terms:

"I am in complete agreement with the contents of paragraphs 9 and 10 of Davendra Bijay's affidavit that the Courts, which includes this Court, have always promoted reconciliation in domestic matters and that upon reconciliation, proceedings have been terminated and the accused ordered to pay costs.

I am also in complete agreement with paragraph 12(3), (f) and (h) of the said affidavit that the children are attending school and that he is the sole breadwinner in the family and that he stands to lose his job as a result of which his family will suffer.

I am not only in agreement, but I am most concerned and distressed, I may add, about the contents of paragraphs 7 and 8 of Uttra Wati's affidavit that the family is suffering hardship and the children shattered and that the sentence could ruin her marriage and that the blame for her husband's imprisonment is being put solely on her shoulders."

But after expressing those fine sentiments the learned Magistrate refused the application for bail and set out fervently his reasons for refusing bail as follows:

"However, strong voices have been raised recently in some forums that the public is most dissatisfied with the meagre sentences which are being imposed on offenders guilty of domestic violence and that the magistrates pay scant regard to gender sensitivity in such cases. It is being advocated that custom, tradition or culture should not be used as an excuse or reason for promoting reconciliation in matters of domestic violence and that a husband's assault on his wife should be treated no different from a man assaulting any other woman in the street or outside a night club. In other words if reconciliation is not proper in the latter case then it is equally improper in the former.

The Magistrates have been told that they should listen to the facts and sentence the offending husband in the same manner as in any other case of assault. They have been told that, and I quote, "whether the marriage breaks down is not your concern and that we are not social workers." It has further been said that domestic violence shall be treated as any other criminal offence and that, again I quote "we are not there to protect the family". It has been said that the general public, women's organisations and other NGO's are unhappy with the lenient sentences, or no sentences passed by the Courts in matters of domestic violence. As pointed out above, the advocates of such a view are not prepared to accept that bearing in mind the social and economic condition in this country and bearing in mind, may be to a small extent, the tradition and culture in which the bulk of the rural population has been brought up, it is unwise to treat a husband and wife assault in the same manner as if the same person had committed a similar assault outside a night club. They are not prepared to accept that though the latter may be a clear case of no re-reconciliation and a custodial sentence, considering the social and economic conditions current in our society, such rigorous and indiscriminate application of the law in a husband and wife situation, particularly where there are children and the parties are prepared to reconcile, albeit after some coaxing, will undoubtedly bring about disastrous social and economic consequences. We are, for some reason, told that, that is none of our business.

In the present case, in spite of the fact that this Court was fully conscious of the retrograde step it was taking, in the light of the standard set out above, it had no choice but to impose a custodial sentence of 4 months imprisonment because if anyone had subjected a woman to that kind of assault out in the street or outside a night club which resulted in injuries such as those received by Uttra Wati, a 4 month sentence would be somewhat on the lighter side.

The Court was loath to apply the test set out above, that is, that an assault by a husband on his wife must be treated as an assault on anyone else and reconciliation, marriage breakdown or effect on children should not be taken into consideration by the Magistrates because they are not there to protect the family neither are they social workers."

It is clear that in refusing bail the learned Magistrate had allowed himself to become overly affected by peripheral sentiments against his own better judgment for justice based on his understanding of existing law in this country. Judicial officers are sworn to do justice according to law and to discharge their judicial function without fear or favour, affection or ill will. It seems clear that the learned Magistrate had let himself down and others concerned in the case by his undue preoccupation with polemical diversions. The concluding passage from the Ruling which is quoted below is, if I may with respect say so, somewhat lamentable in its lack of decisiveness and proper exercise of judicial authority:

"I am firmly of the view that custodial sentence, if it threatens a breakdown of the marriage, or if there is a likelihood that such a move may adversely affect the welfare of the family, should be avoided.

Unfortunately, the Magistrates are advised that it is wrong to adopt such an attitude and what they should do is to regard the offending husband in the same manner as if the victim of the assault was not his wife but a stranger and sentence him accordingly. As already mentioned, if the victim in a case such as this was a stranger, the assailant would have certainly gone to prison.

I sincerely trust that this matter will not stop here and presently we may receive some guidelines as to whether cases of domestic violence are to be treated as any other case of violence irrespective of the effect it will have on the social and economic welfare of the other members of the family. Or whether the promotion of reconciliation is to feature more prominently and should be given more emphasis in a husband and wife situation than in other cases of violence which do not adversely affect the victim, his or her children and other members of the family.

I am afraid that with a great deal of reluctance, I must disallow this application."

It was no surprise that when the bail application was renewed before me on 9 June, 1997 I had no hesitation in granting the application and ordered the appellant to be released from prison to await his appeal from home with his wife and children. Both appellant and wife were present on the hearing of the application when they confirmed again their reconciliation and promised there would be no further trouble in the future. Uttra Wati presented a picture of health and appeared none the worse her experience at the hands of her husband. Appellant was suitably warned that tougher measures would be taken if there should be any further recurrence of the problem. It was clear the couple were very concerned about their marriage and about their children whose welfare and future came dangerously close to being shattered. It would have happened if appellant had lost his job through poor judgment on the part of the court. 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. Guidelines, as sought by the learned Magistrate are not helpful because of the widely varying circumstances of each case. The best guidance, as always, is for the courts to grasp the essence of established general principles of sentencing and apply them based on the fundamental premise that a sentence should not be harsh and excessive or wrong in principle.

The appeal was heard on 20 June, 1997 and judgment was reserved to be given on notice later. That judgment I now proceed to give.

The main ground of appeal is that the sentence of 4 months' imprisonment imposed on appellant was harsh and excessive and wrong in principle having regard to all the circumstances of the case. Appellant was convicted under section 245 of the Penal Code on his own plea for assault occasioning actual bodily harm. The offence is within the category of cases in which the courts are encouraged to promote reconciliation between the affected parties. The relevant provisions are prescribed under section 163 of the Criminal Procedure Code which state:

"163. In the case of any charge or charges brought under any of the provisions of subsection (1) of section 197 or of section 244 or of section 245 or of subsection (1) of section 324 of the Penal Code, the court may, in such cases which are substantially of a personal or private nature and which are not aggravated in degree, promote reconciliation and encourage and facilitate the settlement in an amicable way of the proceedings, on terms of payment of compensation or on other terms approved by the court, and may thereupon order the proceedings to be stayed or terminated."

From the undisputed facts in this case it is crystal clear that the case was eminently suitable for reconciliation. Reconciliation was in fact achieved through the parties' own efforts and willingness to do so. The case was made unnecessarily complex by resort to irrelevant considerations. In these circumstances I have no hesitation in holding that the learned Magistrate had misconceived his proper role in this case and as a result had misdirected himself. His failure to discharge his judicial function properly prevented him from doing justice to the parties according to law. His failure to do so could have resulted in a serious miscarriage of justice.

The appeal is allowed. Appellant has served several days in prison before he was released on bail. Further punitive action is quite unnecessary. The sentence of 4 months' imprisonment is set aside and the case terminated.

T. Tuivaga
Chief Justice

Labasa
16 July, 1997
HAA0030J.97B