State v Chand [2011] FJHC 19; HAC07.2011 (27 January 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 07 OF 2011

STATE

vs

AJAY CHAND
f/n Abhay Chand

Mr. M. Korovou for the State
Accused in Person

Date of Hearing: 21 January 2011
Date of Sentence: 27 January 2011

SENTENCE

[1] On the 4th November 2010, in the Magistrates Court at Lautoka, this accused entered a plea of guilty to two charges as follows:

FIRST COUNT

Statement of Offence

ACT INTENDED TO CAUSE GRIEVOUS HARM: Contrary to section 255(b) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

AJAY CHAND s/o Abhay Chand on the 26th day of October 2010 at Lautoka in the Western Division, with intent to do grievous harm to PUSPA ANJALI NAICKER d/o Sanmogam Naicker unlawfully stuck (sic) PUSPA ANJALI NAICKER d/o Sanmogam Naicker with a pinch bar.

SECOND COUNT

Statement of Offence

DAMAGING PROPERTY: Contrary to section 361(1) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

AJAY CHAND s/o Abhay Chand 26th day of October 2010 at Lautoka in the Western Division, willfully and unlawfully damaged 2 wall mirrors valued at $4,500.00 the property of PUSPA ANJALI NAICKER d/o Sanmogam Naicker.

[2] Having convicted the accused on both charges, the Magistrate transferred the matter to this Court for sentence, pursuant to section 194(a) of the Criminal Procedure Decree.

FACTS

[3] The convict and Miss P.N. had been living in a de facto relationship for 2 years when in June 2010 Miss P.N. moved out of the domestic home and moved into a rental flat with one Fijian lady. She continued her relationship with the convict. Miss P.N. worked as the proprietress of a hair salon.

[4] On the 26th October 2010 this accused went to the salon and waiting until all customers had left, he closed the door and demanded of Miss P.N. why she was seeing another man and he started to beat her with a pinch bar. Apart from beating Miss P.N. he damaged the wall mirror inside the salon with the pinch bar.

[5] Miss P.N. yelled for help when upon passers-by intervened and the accused was arrested and Miss P.N. was rushed to hospital.

[6] The accused was interviewed under caution when he told the Police that the previous evening he had been watching the ladies' flat and had become suspicious of persons he had seen there. It was then that he formulated the plan to take matters in hand the following day.

[7] The accused had on 20th October been made subject to a Domestic Violence restraining order, however he was not charged with breach of this order, by committing these offences.

[8] Miss P.N. was medically examined and found to have quite serious injuries including cut wounds to her eyebrow and lower legs and multiple haematomae on the face, shoulder and legs.

[9] The accused tells me he is 35 years old, that he works as a building contractor and has been educated to Class 7 level. He expresses sincere remorse, and tells me he will try to reconcile with Miss P.N. if she is willing.

[10] The Domestic Violence Decree 2009 is applicable to all parties who are, or have been, in a domestic relationship and the Decree quite obviously is germane in this case. I regard the breach of a prior restraining order against this accused as a very serious matter indeed.

[11] When a relationship sours, it is the right of each party to lead his/her life unfettered by any influence of the other party. Whether Miss P.N. was entertaining a new suitor, or whether this was merely a misconception on the part of the accused does not matter. It must be a basic human right to consort lawfully with whomever one wants to, and not to be prey to the resentful whim of a spurned partner.

[12] The maximum penalty for the offence of act with intent to cause grievous harm is imprisonment for life. This is an offence relatively new to the jurisdiction, introduced by the Crimes Decree 2009 on February 1st, 2010. Until a body of sentencing authorities is secured, it is helpful to rely on the analogous section 224 of the old Penal Code, the offence of an act intended to cause grievous harm. It was established in Viliame Cavubati – HAA 80 of 2001 by Shameem J. that the accepted tariff for this offence should range from a suspended sentence through to 2 ½ years. This Court said in Amasi Korovata – HAC 11 of 2009 that the range now should extend up to 4 to 5 years.

[13] This offence was particularly repugnant in that the victim was the accused's long time girl friend and that the attack was vicious and in her place of work. I take as a starting point a term of two years imprisonment. The aggravating features to be considered are:

(i) there was no provocation on the part of the victim;
(ii) she was unarmed;
(iii) the attack was on the victim's workplace where she had an expectation to be safe.

For these features I add another two years to the sentence bringing it to a total of 4 years.

[14] Although the accused was not charged with a breach of domestic violence restraining order, he has admitted before me that he in fact did so, which I regard as another aggravating feature. For that breach I add a further 12 months imprisonment bringing the interim total term to 5 years.

[15] Of course the greatest item of mitigation in the accused's favour is his plea of guilty and he is to have full credit for this. I deduct from his sentence a full third of 20 months for that plea. I deduct a further period of 4 months for his remorse which means that this accused will serve a total term for the unlawful act of three years. He will serve two years of that term before being eligible for parole.

[16] For the offence of damaging property, I sentence the accused to a term of 9 months to be served concurrently with the unlawful act sentence.

[17] In view of the imminent term of incarceration, any order under the Domestic Violence Decree would be superfluous and I therefore decline to make such order.

Paul K. Madigan
JUDGE
At Lautoka
27 January 2011