State v Odean [1999] FJHC 2; HAC0002 & 0003.1999 (29 January 1999)

IN THE HIGH COURT OF FIJI

AT SUVA

APPELLATE JURISDICTION

CRIMINAL APPEALS NOS.: HCC 2 AND 3 OF 1999
{Suva Magistrate's Court Criminal Cases Nos. 147 and 148 of 1998}

STATE Appellant

v

GYANEDRA ODEAN
s/o Ram Sami Odean
Respondent

JJUDGMENT

The respondent was cwas charged at the Suva Magistrates' Court in two separate files for the offence of assault occasioning acbodily harm contrary to section 245 of the Penal Code. The The respondent pleaded guilty to both these charges and on the 12^th August 1998 the learned Magistrate without conviction discharged the respondent. The respondent was ordered to pay $100.00 costs.

The State appealed against the sentence on the ground that it was manifestly lenient. Both appeals were heard together.

The respondent and the complainant are husband and wife with one child. They had domestic problem. The respondent assaulted his wife on two separate occasions-19^th December 1997 and 23^rd December 1997 respectively. The assaults on the two dates led to the respondent being charged in two separate files.

The respondent pleaded guilty and the learned Magistrate after obtaining Probation Officer's report discharge the respondent without conviction.

The respondent and his wife are not living together and he had assaulted her on two separate occasions. He is paying maintenance for his wife and the child. Giving absolute discharge was not appropriate as I feel the respondent should be restrained from further assaulting the wife. The relationship between the two are not the best and the wife was not prepared to reconcile.

In these circumstances the order for absolute discharge is set aside and in substitution therefor the respondents in each of the two counts discharged under section 44 of the Penal Code on condition that he commits no offence within the next twelve months. These sentences are concurrent. The order for costs remain unchanged.

S.N. Sadal
PUISNE JUDGE

SUVA
29^th JANUARY 1999.