Khanaiya v State [2010] FJHC 167; HAM001.2010 (19 May 2010)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL MISCELLANEOUS NO:HAM 001 OF 2010
CRIMINAL CASE NO: 235 OF 2009

BETWEEN:

VISHAL FRANCIS KHANAIYA
APPELLANT

AND:

STATE
RESPONDENT

Counsel: For Appellant - Mr. A Sen
For Respondent - Mr. Qica

Date of Hearing: 14 May 2010
Date of Judgment: 19 May 2010

JUDGMENT

The appellant in this case was charged in the Magistrates Court Labasa on one count of act with intent to cause grievous bodily harm. The appellant pleaded guilty to the charge and after admitting the summary of facts he was convicted and sentenced to 4 years imprisonment.
The appellant appealed against the said conviction and sentence. However at the hearing counsel for the appellant moved to withdraw the appeal against the conviction and to pursue the appeal only against the sentence.

Hence on withdrawal, appeal against the conviction is dismissed.

The ground urged by the counsel against the sentence is that the sentence is harsh and excessive. Further it is contended that the Learned Magistrate has not given the appellant the discount for his previous good conduct as he was a first offender and the aggravating factors were not properly considered.

Counsel for the respondent State conceded that the Learned Magistrate has not given credit to the appellant for his previous good behavior.

The facts of this case are that the accused and the victim are husband and wife and as they were having problems in their married life victim left the matrimonial house and started living in Nurses quarters. On the day of the incident accused with a paraquat bottle went to room number 2 of the nurses home where victim was sleeping, knocked at the door. When she opened the door accused went inside the room got hold of the victim pulled her out of the room and poured the paraquat weedicide on her face. Victim called for help and accused fled.

The tariff for the offence of act causing grievous bodily harm lies between 6 months imprisonment to 5 years. (State v. Tuitoga [2005] FJHC 88; HAM0016D.2005S)

In a case of an attack by a weapon the starting point should range from 2 years imprisonment to 5 years. (State V. Mokobula [2003] FJHC 164; HAA0052J.2003S)

This is a pre planned offence as the accused got ready with the paraquat bottle went to the victim’s room knocked at the door to get access to the victim to commit the offence.

Counsel for defence submitted that provocation was not considered by the Learned Magistrate. This is not an offence which was committed as a result of a sudden burst, and provocation has to be sudden and the person has to loose control of himself on sudden provocation. In this case accused has planned to commit the offence.

Therefore I find that the Learned Magistrate was correct in taking the starting point as 4 years imprisonment.

Although on behalf of the appellant it is submitted that aggravating factors were not properly considered, using of the dangerous substance to commit the offence was considered as an aggravating factor by the Learned Magistrate.

As conceded by the Counsel for Respondent State I find that the Learned Magistrate has not given the discount for the previous good behavior of the appellant. I find one year discount would be appropriate as the appellant has no previous convictions.

It was brought to the notice of this court by the counsel for appellant that no serious injuries were caused to the victim.

In paragraph 9 of the sentencing judgment of the learned Magistrate it is said that upon inspection of medical records extensive serious injuries were caused to the victim. Counsel for state conceded that no serious injuries are shown in the medical report. In the summary of facts admitted by the appellant all those injuries mentioned the sentencing judgment are mentioned. But as conceded by the counsel for State, on perusal of the Medical Examination Form of the victim prepared by the Medical Officer which is filed of record, only 3 injuries are reflected which are not of serious nature as mentioned in the summary of facts. On considering that I find that it would be appropriate to add 18 months for the aggravating factors instead of 2 years added by the Learned Magistrate.

Hence this appeal against the sentence succeeds. I set aside the sentence of 4 years imposed by the learned Magistrate and substitute a sentence of two and a half years imprisonment on the appellant.

Priyantha Fernando
Puisne Judge

At Labasa
19 May 2010