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Wise v State [2008] FJHC 316; HAA078J.2008S (10 November 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 078 of 2008

Between:

GEORGE WISE
Appellant

And:

THE STATE
Respondent

Hearing: 30th October 2008
Judgment: 10th November 2008

Counsel: Appellant in person
Ms J. Shah for State

JUDGMENT

[1] The Appellant appeals against conviction and sentence on the ground that he has reconciled with the complainant. He was convicted by the Navua Magistrates’ Court of one charge of criminal intimidation and sentenced to 2½ years imprisonment on the 27th of May 2008.

[2] The charge was filed on the 16th of January 2008. It alleged that on the 14th of January 2008 in Navua in the Central Division without lawful excuse and with intent to cause alarm threatened Grace Wise in words to cause injury to her person.

[3] The case was called on the 16th of January 2008. He was told of his right to counsel and he asked for a lawyer. The prosecution asked for him to be mentally assessed at St. Giles Psychiatric Hospital. He said he was suffering from a "serious illness." The Appellant remained in remand. On the 6th of February the Hospital had not conducted the examination.

[4] The report was finally provided on the 18th of February 2008. It stated that he was aware of his actions, and that he was able to participate fully in court proceedings. He was then granted bail and was given time to instruct counsel. On the 18th of March 2008 he waived his right to counsel and pleaded not guilty.

[5] The trial proceeded on the 16th of April 2008. The evidence of Grace Wise, the Appellant’s sister, was that she was at her family home at Wainividivo on the 14th of January at 8pm when the Appellant began to verbally abuse her. He swore, threatened to kill her by burning her inside her bedroom and called her a prostitute and bitch. He punched and kicked the wall of her bedroom where she had locked herself, for over an hour. She said that the Appellant always wanted the house to himself, that he would smoke cannabis there with his friends and that he had behaved in this way previously. The witness’s boyfriend came home at 9pm and persuaded her to report the matter to the police.

[6] In cross-examination the Appellant asked the witness whether she had reported him to the police for selling marijuana and suggested that he had smoked marijuana and not sold it. This line of cross-examination appears then to have been stopped by the learned Magistrate. The Appellant then put to the witness that he had never threatened her but she maintained her position.

[7] Giving evidence next was Police Constable Adrian Simmons who interviewed the Appellant under caution. The Appellant did not object to the tendering of his interview. In it he denied saying anything to her, saying that he had been lying down reading the Bible.

[8] The Appellant gave sworn evidence. He said he had never threatened his sister, that he was angry with her for reporting him to the police, that he had been arrested and convicted for possession of marijuana and not for selling and that the conviction had cost him his job. She had reported him in 2006 and he had been angry with her since then.

[9] Judgment was delivered on the 13th of May 2008. The learned Magistrate directed herself on the burden of proof and said that the case depended on the evidence of Grace Wise. She accepted her evidence and found some support from the admission of the Appellant that he had been angry with her since 2006. She convicted the Appellant.

[10] Sentence was imposed on the 27th of May 2008. She considered Kelemedi Lagi and Others v. The State HAA 004/2004S and commenced at 2 years imprisonment. She considered the mitigation, the Appellant’s career in engineering, his employment and his studies. She sentenced him to 2½ years imprisonment.

[11] The Appellant’s main ground of appeal against both conviction and sentence is that he has reconciled with his sister, and that this is a family matter which was not the concern of the courts. His sister came to court to confirm reconciliation and said that this had occurred since his sentence was passed.

[12] The State opposes this ground of appeal saying that criminal intimidation is not a reconcilable offence, that even if it was a family dispute, reconciliation usually failed to take into account the weaker bargaining position of women in the household, and that the 2½ term of imprisonment was correct in principle.

[13] The appeal against conviction must fail. Reconciliation was not an issue at trial, either in fact or in principle. The Appellant had not reconciled with his sister at the trial and his anger with her was obvious to the trial magistrate. It was a contributing factor to the finding of guilt. Even if they had reconciled, the offence of criminal intimidation, contrary to section 330(a) of the Penal Code, is not an offence listed in section 163 of the Criminal Procedure Code as an offence for which reconciliation should be promoted. Section 330 is not a reconcilable offence.

[14] Although the issue of disclosure of his previous convictions was not a ground of appeal, I consider that I should deal with it because the Appellant is unrepresented. The issue of the Appellant’s experience with drugs, and of his previous conviction for possessing drugs arose from the Appellant’s own cross-examination. He clearly disclosed the information to prove that his sister had a history of hostility towards him, thus leading her to make a false complaint. Sadly for him, the "defence" was just as capable of strengthening the prosecution case by becoming proof of anger towards his sister. Nevertheless it was the Accused himself who brought up the issue, firstly in cross-examination of Grace Wise, and secondly during his own sworn evidence.

[15] The learned Magistrate appears to have given the issue only cursory attention, relying on it to find that the Appellant was angry with his sister. It was evidence of motive, which was relevant to the case. There is no evidence that the Appellant was prejudiced by it or that the learned Magistrate relied on the evidence of the previous conviction to find guilt in this case. It might have been preferable for the learned Magistrate to say in her judgment that she "warned herself to disregard the evidence of character in considering the Accused’s guilt" but I find no suggestion that she relied upon that evidence in any other way other than to find motive.

[16] The appeal against conviction is dismissed.

[17] In her sentencing remarks, the learned Magistrate said that although the offence of criminal intimidation had no tariff set by guideline judgments, she would rely on the decision of Kelemedi Lagi and Others v. The State HAA0004 of 2004S, a case of arson and criminal intimidation. In that case the Accused had been convicted of, inter alia, criminal intimidation for gathering outside the house of a fellow villager, armed with sticks and spear guns, and for banging the walls and saying that the house would be burnt. The Accused were sentenced to two years imprisonment. In that case, I said:

"Similarly, in respect of the offence of criminal intimidation, the maximum sentence is 10 years imprisonment because the "threat’ was to burn the house. The Respondents acted as a group to put fear into the occupants of the house. The occupants included men, women and children. Committed in the middle of the night, and involving the use of dangerous weapons, the offence called for a deterrent sentence."

[18] In this case the Appellant acted alone, and although he too threatened to burn the house down, his was not a case of group threats of violence. I consider that the starting point should have been 12 months imprisonment. Aggravating factors were the prolonged nature of the intimidation, the level of abuse, the violence to the walls and door of the victim’s bedroom and the lack of any regret or remorse.

[19] Mitigating factors were his difficult relationship with his sister, his employment history, his educational endeavours and the lack of any physical harm. He is not a first offender. He has previous convictions for assault (in 1998), damaging property (in 2000 and 2006) and resisting arrest (2007). He was not entitled to the special leniency given to first offenders.

[20] The Appellant submitted that this is a family dispute and that this was a mitigating factor. I do not agree. The fact that an assault, or threats of assault occur within a family home, does not make it any less a criminal offence. To suggest otherwise would be to give those who hold positions of power and authority within the home, virtual impunity from prosecution and punishment. A criminal offence is an offence whether it is committed on the street on strangers, or in the home on one’s own family members. Indeed it may be said that offences committed on family members should be considered very seriously by the courts because of the gross betrayal of trust perpetrated on those family members.

[21] The courts must also be aware that offenders may escape justice because their victims are emotionally and financially dependent on them, and can easily be persuaded to reconcile and withdraw their complaints. Reconciliation is a positive feature of justice, but it must be effected from an equal bargaining position.

[22] In this case the State suggested that there was no such equality of bargaining position, and referring to decisions of the High Court on reconciliation and sentencing (Khan v. The State [2002] HAM0049D.2002S, Pal v. The State [2005] HAA 0092J.2005S, State v. Naitokarua [1994] HAM 0006t) submitted that the victim was in a weak position in relation to reconciliation.

[23] Having seen the complainant myself, I do not consider this to be the case. It appears that she has made amends with her brother out of genuine compassion and has been visiting him in prison. However I also consider that her forgiveness of him arose from her knowledge that the Appellant has been punished by the courts. Justice has ensured reconciliation.

[24] If this evidence had been before the learned Magistrate, it would have reflected on sentence. However it was not, and I cannot consider it at appellate stage.

[25] I do however consider that the 2½ year was in excess of the appropriate sentence for this case, and on a starting point of 12 months imprisonment the correct sentence should have been 18 months imprisonment. The circumstances are less serious than in the Lagi case.

[26] The appeal against sentence is allowed and sentence is reduced to 18 months imprisonment.

Nazhat Shameem
JUDGE

At Suva
10th November 2008