State v Hakim [2010] FJHC 89; HAC022.2009 (17 March 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC 022 OF 2009
CRIMINAL CASE NO: 462 OF 2007

BETWEEN:

STATE
PROSECUTION

AND:

MOHAMMED MUSTAFA HAKIM
ACCUSED PERSON

Counsel: State - Ms. T. Lewewni
Accused Person - Mr I. Khan

Date of Hearing: 2/03/10; 4/3/2010; 8/3/2010; 10/3/2010; 11/3/2010

Date of Sentence: 17th March, 2010.

SENTENCE

Mohammed Mustafa Hakim you have been convicted after full trial on one count of Assault occasioning actual bodily harm punishable in terms of Section 245 of the Penal Code.

Evidence of the complainant was that you punched her, kicked her and then tried to kill her by hanging. The position of the defence was that the complainant tried to commit suicide and to rescue her from committing suicide you punched her.

With regard to the offence of attempted murder the Assessors did not believe the complainant’s story and opined that you are not guilty to the charge.

But Assessors opined that you are guilty of Occasioning actual bodily harm which was the 2nd count.

The evidence of the case on this offence was that you punched and kicked your de facto partner the complainant after a quarrel between the two of you.

The maximum punishment for the offence of occasioning bodily harm for which you are convicted in 5 years imprisonment.

The tariff for this offence ranges from suspended sentence where there is a degree of provocation and no weapon used, to 9 months imprisonment for the more serious cases of assault Sareka v State[2008] FJHC 88; HAA 028.2008 [25 April, 2008], State v Anjula Devi Crim. Case No. 4 of 1998 Lab.

Considering the above facts I take 3 months as the starting point.

The aggravating factors are that you as the de facto partner of the victim was in a position of trust and abused this by punching the victim on the cheek and kicking on the back.

I increase the sentence by 3 months for the aggravating factors.

The mitigating factors are that you maintain your son of 15 years of age and the mother of 68 years old. That you didn’t use any weapon.

On the mitigating factors I reduce the sentence by 3 months. You are not entitle to a discount on good behaviour as you have previous convictions.

Therefore your sentence now remains at 3 months.

Now I will consider whether your sentence of 3 months should be suspended.

I take into account the mental agony you would have gone through for a long period of time on the charge of attempted murder which you were acquitted after trial. Further I consider the

fact that after the incident your de facto partner had on several occasions after settling the family disputes lived with you and also the period you were in remand.

In the circumstance I find a suspended sentence would meet ends of justice.

Therefore I suspend the 3 months imprisonment for 2 years.

You have 30 days to appeal.

Priyantha Fernando
Puisne Judge

17/03/2010