State v Khan [2010] FJHC 559; HAA022.2010 (15 December 2010)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

Criminal Case No: HAA 022 of 2010

BETWEEN:

THE STATE
The Appellant

AND:

IMROZ KHAN S/O MUHAMMED KHAN
The Respondent

Counsel: Mr. M. Kaisamy for the Appellant
Mr. T. Lee for the Respondent
(Duty Solicitor)

Date of Hearing: 13 December 2010
Date of Judgment: 15 December 2010

JUDGMENT

[1] The State appeals against the suspended sentence imposed on the respondent in the Magistrates' Court for an offence of act with intent to cause grievous harm. The State contends that the suspended sentence is manifestly lenient having regard to the circumstances of the case.

[2] The facts are that on 16 November 2009 at around 8.30a.m., the respondent entered the house of the victim and struck him on the head with a piece of timber. The victim was 44 years old at the time while the respondent was 26 years old. The victim sustained a sharp cut wound measuring 5cm in length on the skull as a result of the assault.

[3] The respondent first appeared in the Magistrates' Court on 17 November 2009. He was granted bail. The case was then adjourned on numerous occasions. On 25 June 2010, the respondent was remanded in custody for breaching bail. On 7 July 2010, he was granted bail. On 27 July 2010, he pleaded guilty. He had three previous convictions. None was for assault.

[4] The learned Magistrate in his sentencing remarks took into account the respondent's guilty plea, first offence of assault and remorse as mitigating factors.

[5] He considered the serious nature of the injury sustained by the victim and the use of a timber as aggravating factors.

[6] The learned Magistrate picked 12 months as a starting point, added 4 months for the aggravating factors and reduced to 8 months to reflect the mitigating factors. After arriving at a term of 8 months, the learned Magistrate suspended the sentence without giving any reason.

[7] The tariff for the offence of act with intent to cause grievous harm is between 6 months to 5 years imprisonment (State v Makobula [2003] FJHC 164; HAA0052J.2003S (23 December 2003). Wounding another person with a weapon should, almost always, be visited with immediate imprisonment sentence to deter the offender and the others (State v Dinesh Chand Crim. App. No. AAU0077 of 2000S).

[8] The term of 8 months imprisonment imposed on the respondent is within the tariff for this offence. However, by suspending the imprisonment term the learned Magistrate imposed a sentence outside the tariff.

[9] There is no doubt that the learned Magistrate had discretion to suspend the sentence. However, the discretion must be exercised judiciously and not at whims. Clearly, the failure to give reasons for suspending the sentence shows the discretion was abused. If the learned Magistrate had directed his mind to the guideline sentencing principles for the offence of act with intent to cause grievous harm, he would have concluded that the only appropriate sentence would have been an immediate custodial sentence in absence of exceptional circumstances.

[10] The victim was attacked in the security of his house with a timber, resulting in serious head injury. The attack was unprovoked and showed a total disregard of the law by the respondent. In these circumstances, it was wrong in principle to suspend the sentence and ignore the principle of deterrence.

[11] Whilst the term of 8 months imprisonment is just and appropriate in the circumstances of the case, I take into account the accused was in custody for three weeks after his bail was revoked and that he had already served 6 months of his suspended sentence.

[12] The sentence imposed on the respondent in the Magistrates' Court is quashed and a sentence of 6 months imprisonment is substituted effective from today. The fine paid by the respondent remains.

[13] The State's appeal is allowed.

Daniel Goundar
Judge

At Labasa
Wednesday 15 December 2010

Solicitors:

Office of the Director of Public Prosecutions, Labasa for State
Office of the Legal Aid Commission, Labasa for Respondent