Sharma v The State [2001] FJHC 106; Haa0100.200l (30 July 2001)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
Appellate Jurisdiction

CRIMINAL APPEAL NO. HAA 0100 of 2000l

BETWEEN:

RAM RAJESH SHARMA
f/n Ram Narayan
Appellant
&

THE STATE
Respondent

Date of Hearing: 20 July 2000
Date of Judgment: 30 July 2001

Mr R Gordon for Appellant
Mr D Prasad for State/Respondent

JUDGMENT

On 29 September 2000 the Appellant appeared before the Magistrates Court at Lautoka. He was charged with two (2) Counts of Assault Occasioning Actual Bodily Harm contrary to Section 245 of the Penal Code. The complainants were his wife and mother-in-law. The Appellant pleaded guilty. He was convicted and sentenced to 9 months imprisonment on each count. The sentences, which were to be served consecutively were suspended for 2 years.

The Appellant appeals against the sentences on the following grounds:

1. The sentence of the Learned Trial Magistrate was excessive and harsh in the circumstances and the Learned Trial Magistrate failed to take into account the Appellants mitigating factors.
   
2. The Learned Trial Magistrate erred in law and in fact not applying established sentencing principles and/or in wrongly applying the said principles by sentencing the Appellant to a sentence of nine months imprisonment on each count to be served consecutively but suspended for 2 (two) years.
   
3. The Learned Trial Magistrate erred in law and in fact in failing to take into account that the Appellant had reconciled with the Complainants and that the Complainants were his wife and mother-in-law.
   
4. The Learned Trial Magistrate erred in law and in fact in failing to take into account that the Appellant and the first Complainant were living together and had reconciled with each other.
   
5. The Learned Trial Magistrate erred in law and in fact in failing to take into account the Appellant was a first offender and had no previous convictions.
   
6. The Learned Trial Magistrate erred in law and in fact in failing to take into account that the Complainants did not suffer and/or receive serious injury.
   

In oral argument learned Counsel for the Appellant centred his submissions on the issue of reconciliation. He stated that the parties husband, wife and mother-in-law, are living together. Further, that the Appellant was a first offender and the injuries were not serious. He also raised the issue that the sentences imposed was disproportionate punishment contrary to Section 25 (1) of the Constitution.

Learned State Counsel did not in substance oppose the Appeal. He conceded that in view of the reconciliation the learned Magistrate should have invoked Section 163 of the Criminal Procedure Code to promote reconciliation and living together. He further conceded that a Section 44 Penal Code discharge with or without conviction could have satisfied the ends of justice and fairness.

The Court is mindful that on Appeal the High Court cannot substitute its own view of the sentence willy nilly. It should only intervene if the Magistrates Court is wrong in law or exercised its discretions in an improper or unreasonable manner.

The facts outlined by the Prosecution are rather bare. These are stated as follows:

“The Complainant in Court 1 is wife and in Court 2 is mother-in-law.

On 29/08/00, at 5.50pm accused went to 2^nd Complainant’s house. 1^st complaint works at USP as a Clerk. She had come to her mother’s place. Accused went there and questioned 1^st Complainant why she came from Suva without telling him.

They argued. He assaulted her. He punched them both.”

The facts do not reveal much as to how the assaults took place, especially in relation to the Complainant/mother-in-law in Court 2. Under mitigation it is recorded that the Appellant states: “I have slapped her because she never listened to me. My mother-in-law interfered.” What was the mother-in-law’s inference is not clear. Were the complainants punched, as recorded in the facts as slapped as appears from the mitigation. At a later stage, after mitigation, it is recorded by the Court that PW2 stated “I was on the phone. He hit me.” Was the mother in law on the phone when hit or slapped or punched? Or did she interfere in the argument between the husband and wife when hit or slapped or punched? The Medical report notes “mild bruise over (l) side – soft tissue” for the wife. For the mother-in-law it also notes a soft tissue injury. The diagnosis suggests “blunt force impact injury” for both complainants.

In the Courts view the facts and medical report suggest the injuries were not serious.

As such given the private nature of the assault which was not aggravated in degree Section 163 of the Criminal Procedure Code could have been used to promote reconciliation. The appellant was a first offender.

From the Courts experience of assault cases sentences have ranged from as low as 1 month to 2 years depending on the seriousness of the injuries and nature of the assaults. In many cases of domestic violence s 44 discharge is also used, after conviction, to ensure that the offence is not repeated otherwise the offender may be sentence for the original offence.

In this case the sentence of 9 months was on the high side given the Appellants clean record and the nature of the injuries. As regards the second complainant given the facts traversed earlier it is not clear why a same sentence was imposed. In Lister 5.10.72, 787/13/72 it was stated that “the proper way of sentencing is to look at the offence itself and the circumstances in which it was committed, then to assess the proper sentence for the offence on the basis there are no mitigating circumstances, and finally to look to see what the mitigating circumstances are, to reduce the assessed sentence to give effect to the mitigating circumstances” (quoted in Thomas D.A. (1980) Principles of Sentencing p 35 footnote.

Further, the facts are not sufficiently clear to indicate whether the offences were committee in the course of a single transaction. Was the mother-in-law assaulted separately while she was on the phone or when she interfered in the dispute between the couple? If the offences were not considered part of the same transaction then consecutive sentences may be imposed. However, the Court than has to consider the totality principle, that is, to consider whether the aggregate was “just and appropriate” (see Thomas op cit p56; Joseva Liu & Others v State FCA Cr. App. No. AAU0005/97S; State v Ilaisa Sousou Cava Cr. Case HAC 007 of 2000S)

In his sentencing remarks the learned Magistrate states: “Serous offence and deterrent sentence required. Similar offences on the rise.” It is not clear what principles are articulated . In this Court’s view a s44 conditional discharge, keeping sentence open for 12 moths, would be a deterrent in a domestic violence situation. While the Court is sensitive to the increasing levels of domestic violence cases in Fiji it cannot ignore the individualized factors relevant to sentencing. A critical balancing act is required given the circumstances of each offending. In certain situations the promotion of reconciliation may be appropriate. The Court is reminded of the sentiments expressed in Webee v O’Sullivant [1952] SASR 65 at 66: “The Courts should endeavour to make the punishment fit the crime and the circumstances of the offender, as nearly as may be. Our first concern is the protection of the public, but subject that, the Court should lean towards mercy. We ought not to award the maximum which the offence will warrant, but rather the minimum which is consistent with a due regard for the public interest.”

Learned Defence Counsel had raised the issue of Section 25(1) of the Constitution. He claimed that the punishment was disproportionate given that this was the Appellant’s first offence and the reconciliation. In response State Counsel submitted that disproportionality has to be measured on the facts of the case to determine whether it is disproportionately severe punishment. No detailed submissions were made to suggest whether the raising of this Constitutional provision required any higher standards or principles to be adopted, distinct from the long established principles established by the Courts. In R v Smith [1987] 1S.C.R. 1045 the Canadian Supreme Court had stated. “In assessing whether a sentence is grossly disproportionate, the Court must first consider the gravity of the offence, the personal characteristics of the offender and the particular circumstances of the case in order to determine what range of sentences would have been appropriate to punish rehabilitate or deter this particular offender or to protect the public from this particular offender.” This case has considered section 12 of the Canadian Character of Rights and Freedoms which provides that a person is not to be subjected to any cruel and usual treatment or punishment. This is in similar terms to our section 25(1). The Court does not need to deal with the constitutional provisions on the facts of this case.

In this case the ends of justice would have been met if a conditional discharge was considered in view of the private nature of the offence. This would also fulfil the Courts obligations to promote reconciliation. Learned state Counsel has also expressed similar sentiments.

The Court has considered the applicable principles and the facts and circumstance of the offences for which the Appellant was charged. The Court will set aside the sentences imposed by the Magistrates Court and substitute the following. The Appellant’s conviction is upheld. He will discharged under Section 44 of the Penal Code, subject to the condition that he commits no offence in the next 12 months. The terms of the conditional discharge is explained to the Appellant.

[Jayant Prakash]
Acting Puisne Judge

DATE: at Lautoka this Monday the 30^th day of July 2001.