Bali v The State [1995] FJHC 104; Haa0007.1995 (9 June 1995)

IN THE HIGH COURT OF FIJI
AT SUVA
Appellate Jurisdiction

CRIMINAL APPEAL NO. HAA0007 OF 1995

BETWEEN:

SATEND CHAND BALI
Appellant

&

THE STATE
Respondent

Appellant in Person
Mr Bal Ram for the Respondent

JUDGMENT

The appellant Satend Chand Bali was convicted after trial in the Suva Magistrate’s Court of Criminal Trespass contrary to Section 197 (2) of the Penal Code, Cap. 17; and Assault Occasioning Actual Bodily Harm contrary to Section 245 of the Penal Code, Cap. 17.

The particulars of the offences alleged were that on the night of 9^th March, 1992 at Nasinu entered the dwelling house of Tara Mati d/o Phate Ram without lawful excuse and assaulted her thereby occasioning actual bodily harm.

Appellant is appealing against sentence on a number of grounds which are in fact of a mitigating nature, except the ground upon which he argued that the consecutive sentence was harsh in view of the circumstances and facts of the case.

The mitigation that the appellant presented at the hearing of this appeal ought to have been given tat the trial in the court below.

The record shows that he was given the opportunity to present his pleas in mitigation and what he presented at the hearing of the appeal was merely an attempt to have a second bite of the cherry.

The prosecution evidence was that on the night in question at about 8.00pm the complainant was at her home with her fairly. She was sitting at the front of her house when she saw a taxi stopped in from of her house. She saw the appellant got off the taxi and came into her compound and started punching the complainant in the face and also kicked her in the face and left. As a result of the assault she suffered injuries to the face and was taken to CWM Hospital where she was examined and treated.

The medical report indicated that complainant’s face was “swollen up and puffy and had small cuts on the face and inside the mouth”.

The appellant was interviewed by the police investigating officer Constable Muni Murthi. He admitted assaulting the complainant because she assaulted his mother.

In court before the learned Magistrate appellant gave evidence on oath and denied going into the complainant’s compound on the night in question. The Magistrate in his judgment accepted the evidence of complainant and other prosecution witnesses and rejected the evidence of the appellant and found him guilty and convicted him on both counts as charge and sentenced d him to 3 months imprisonment on the first count and 9 months imprisonment on the second count and ordered that the two terms be served consecutively.

The appellant has a number of previous convictions for dishonesty but none for assault occasioning actual bodily harm.

Be that as it may I find that in view of the facts and circumstances surrounding the assault on the complainant it is clear that the sentence on each of the two counts could not in any sense be regarded as harsh but I do believe that because the two offences were committed in the course of a single transaction the sentence ought to be made concurrent. The appellant has had a heart operation already and according to the medical report Ex. A he still has a heart problem.

I will therefore set aside the 12 month consecutive sentence on the two counts imposed by the court below and in substitution therefore order that the sentenced on both counts be served concurrently, but consecutive to any term that appellant is now serving.

To this extent the appeal against sentence succeeds.

S W Kepa
JUDGE

9^th June, 1995

HAA0007.95S