Pal v The State [2005] FJHC 456; HAA0092J.2005S (23 September 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Crim. App. No: HAA0092 of 2005

Between:

RAJINESH PAL
Appellant

And:

THE STATE
Respondent

Hearing: 16th September 2005
Judgment: 23rd September 2005

Counsel: Appellant in Person
Mr. D. Prasad for State

JUDGMENT

The Appellant appeals against his sentence of 2 years imprisonment imposed for the offence of act with intent to cause grievous harm. The charge reads as follows:

Statement of Offence

ACT WITH INTENT TO CAUSE GRIEVOUS BODILY HARM: Contrary to Section 224(a) of the Penal Code, Cap. 17.

Particulars of Offence

RAJINESH PAL s/o Chattar Pal on the 6^th day of March 2005 at Suva in the Central Division, with intent to do some grievous harm, unlawfully wounded one SHASHI PRABA d/o Shiri Ram with a kitchen knife.

The case was first called on the 10^th of March 2005. The Appellant pleaded not guilty. He was granted bail. On the 18^th of April 2005, he was told of his right to counsel. He waived this right and pleaded guilty. The facts were that on the 6^th of March 2005, between 10am and 1pm, the Appellant approached his wife (the complainant) in Gordon Street. He asked her about her belongings. He then followed her and hit her. She fell. He then stabbed her on the left of her stomach twice, and once on her left hand. He then fled. She reported the matter to the police. She was examined by a doctor where she was admitted in hospital for treatment. Under caution the Appellant admitted stabbing the complainant. These facts were admitted. No medical report was tendered by the prosecution.

In mitigation the Appellant said that the complainant was his wife, that they had reconciled and were staying together. This was confirmed by the complainant who said that her injuries were healed, that they had one child and that she had forgiven him.

The Appellant has a total of 20 previous convictions. The majority are for breaking and entering offences but he has one previous conviction for robbery with violence, one for assault and one for criminal intimidation.

In sentencing the Appellant, the learned Magistrate took into account the reconciliation, the guilty plea and use of the kitchen knife in a public place. He sentenced the Appellant to 2 years imprisonment and declined to suspend it because of the public nature of the assault and the seriousness of it.

The Appellant in his submissions asked for a reduction of his sentence on the grounds that he had a family to look after and a sickly mother. State counsel opposed the appeal saying that the offence was not reconcilable, the sentence was within the tariff and this was a serious public assault. He referred to the decision of Winter J in Rajesh Prasad v. State HAA0058 of 2004. In that case the appellant was sentenced to 3½ years imprisonment for a sustained assault with fists, kicks and broom handle. He also poured kerosene over her and was about to strike a match when his wife escaped. In that case too, husband and wife had reconciled and the victim had told the court that she was financially dependent on the appellant. His Lordship refused to reduce the sentence saying it was within the accepted range of sentences for this type of offence.

In this case the Appellant used a kitchen knife on his wife. Notwithstanding their continued marriage, there was no escaping a custodial term of imprisonment. In considering what weight to put on reconciliation in a case of domestic violence, the courts must remember that true reconciliation can only take place when both parties are in an equal relationship. Where one party lives in fear of violence and intimidation, and is dependent on the other for financial survival, very little weight can be put on a declaration of reconciliation and forgiveness. Reconciliation cannot occur in a relationship built on fear and intimidation. As Winter J said in Rajesh Prasad (supra) at page 4:

“Frequently the Court gets to form a view that the reconciliation is more to do with issues of power and dominance from the domestic relationship where the victim have become so dependent on her abuser and so powerless that she has learned only helplessness and cannot make wise life choices because of that debilitation.

It is for that reason that while the Court may have sympathy for the late plea of reconciliation nonetheless this must be weight against the need for vigilance in the eradication of domestic violence. The public have a right to expect zero tolerance for any violence especially that occurring within the home. The protection of the weak and powerless in society requires a movement from rhetoric to reality.”

The Appellant committed a serious assault with a kitchen knife. His wife was hospitalised as a result. Comparable offences have led to prison sentences of between 6-9 months and 3 years. The sentence of 2 years fell within the tariff. It is correct in principle. This appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
23rd September 2005