Chandra v The State [1995] FJHC 87; Haa0038d.95s (8 May 1995)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

APPEAL NO. HAA0038D OF 1995

Between:

SATISH CHANDRA
Appellant

And:

STATE
Respondent

Counsel: Mr. Sharma for Appellant
Mr. Tuiqereqere for Respondent

Hearing: 8th May 1995
Decision: 8th May 1995

ORAL DECISION OF PAIN J.

The Appellant was charged in the Magistrates Court with Assault Occasioning Actual Bodily Harm under Section 245 of the Penal Code. Following a defended hearing he was convicted. The sentence imposed was a fine of $100.00 of which $50 was to be paid to the complainant and a sentence of six months imprisonment suspended for two years.

The Appellant appealed against his conviction and sentence. The conviction appeal has not been pursued at this hearing. The appeal against sentence has been argued.

Although there is no longer an appeal against conviction, the decision and particularly the findings of the Magistrate, are relevant to a sentence appeal. The paucity of the decision in this case prompts me to make some remarks about this matter.

Section 155 of the Criminal Procedure Code, prescribes the form of judgment to be delivered in the Magistrates Court. The provisions of that Section must be followed. In particular the judgment shall contain the point or points for determination, the decision thereon and the reasons for the decision. It must also specify the offence and Section of the Penal Code. Those statutory provisions must be followed and adequate reasons must be given by a Magistrate for a decision made.

In this present case although there is no longer an appeal against conviction, the Magistrates decision must be regarded as insufficient. Further elaboration and proper reasons should have been given. The Magistrate in his decision says in effect that he believed the prosecution witnesses and disbelieved the Appellant and his witness. Reasons should have been given for deciding credibility in this way. Furthermore the decision should have dealt with the proof of the various ingredients of the offence including the particulars of actual bodily harm. Furthermore the statutory reference to the offence has not been included in the decision.

I turn now to deal with the sentence appeal. To do this I must consider the decision in the Magistrates Court and the evidence adduced at the hearing in order to determine the circumstances of the offence, the gravity of the conduct and the appropriateness of the penalty.

It is clear that the Magistrate accepted the evidence of the prosecution witnesses. That evidence is not extensive. According to the record, Police witness 1, the complainant, said that his brother was paying the electricity bill. All tenants share the bill including accused. He continued:

"On the 4th may 1992 at 1pm I was opening my office when the accused asked me where is bill of electricity. Not sure of amount. He wanted $l5 from me. He started to punch me suddenly once we were talking in a friendly way. I did not pay. I told him my brother will pay. He punched me a few times. Punch me in the chest, body. He gave several punches. I got injured, had fractured nose, locked jaw, blood came out."

Police witness 2 said that she heard a noise, came out and saw the Appellant punching the complainant. The complainant was just defending himself. The Appellant punched him on the nose, blood came out and the Appellant went into his shop and closed it.

Police witness 3 said that the complainant and the Appellant began to discuss about the electricity bill. The witness heard three or four punches. The complainant, her husband then went down. She saw the Appellant punching him. The Appellant gave a last punch on the nose and the complainant almost collapsed. The complainant did not punch. He tried to defend himself.

All this evidence shows a sudden concerted attack by the Appellant upon the complainant. That attack involved numerous punches. The complainant suffered a fractured nose and some other harm to his jaw that he described as "locked jaw".

A medical report was also produced at the hearing. That report has limited value. It is extremely difficult to read. If such reports are to be relied upon by the prosecution, then they must be produced in a legible form and it may be necessary for the examining doctor to be called as a witness. This matter was considered by the Court of Appeal in Maciu Gonevou v The State Cr. Appeal No. 12 1992. It is clear from that decision that in appropriate cases the court should decline to accept the report if it is not in an acceptable form. In this case the evidence in the form of the report was accepted by the Magistrate. However it does not have great evidential value. In paragraph 13 (b) there is confirmation or there is apparent confirmation of some injury to the complainant's nose. A record of a laceration is also discernable but other details are not legible. There must have been some other matters of concern because Xrays were prescribed. In paragraph 15 it can be seen that some treatment was prescribed. Again, most of it cannot be deciphered although four sutures were made. Paragraph 16 also records the ordering of Xrays for some parts of the body which includes the complainant's nose.

The totality of the evidence shows a substantial assault. There were a number of blows. These caused a broken nose to the complainant and a laceration that had to be stitched. This was an assault, causing injuries of some substance.

An unprovoked assault causing actual bodily harm of this nature, must be regarded as relatively serious. Wanton violence cannot be tolerated in the community. Sentences in individual cases vary considerably, depending on the circumstances of the offence. However, a short prison term of six months is certainly within the range of penalties that could properly be imposed for the offence committed by the Appellant on this occasion. It is not a question of whether this court would necessarily have imposed exactly the same penalty. The penalty imposed is within the range of the Magistrates sentencing discretion. The nature of such offending and the concern it creates in the community justifies a sentence that properly reflects the seriousness of the conduct and acts as some deterrent.

The Magistrate in the particular circumstances (which again should have been recorded) extended the leniency of suspending the sentence. There is very little in the record by way of mitigation which would prompt this leniency. However the exercise of this discretion is not an issue on this appeal. The combination of a moderate fine is also appropriate as a penalty in these cases.

Having considered all the evidence and submissions, I am of the view that this is not a case where the inappropriateness of the total penalty is readily discernible. It is a penalty within the Magistrate's discretion for an offence of this nature. It is not manifestly excessive.

Accordingly I make the following orders:

1. The appeal against conviction, not having been proceeded with, is dismissed.
2. The appeal against sentence is dismissed.
   

JUSTICE D.B. PAIN

HAA0038D.95S