State v Kumar [2011] FJHC 341; HAA020.2010 (9 June 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA 020 OF 2010

BETWEEN :

STATE
Appellant

AND:

RAMENDRA KUMAR
Respondent

Ms M. Fong and Ms L. Vateitei for the State
Respondent in Person

Date of Hearing : 08 June 2011
Date of Judgment: 09 June 2011

JUDGMENT

[1] The respondent was charged in the Magistrates Court at Nadi with assault occasioning actual bodily harm to his wife. He entered a plea of guilty to the charge.

[2] The facts were that on the 7th December 2009 a dispute arose between the respondent and his wife over a petty matter and the respondent punched the face and head of the victim. The injuries were rather serious; she had a swollen face and bruises around both eyes, she had swollen lips, jaw and mouth and lacerations and bleeding on her lower lip. There were superficial cuts on her head and a broken tooth.

[3] The wife told the Court that she was not willing to reconcile with her husband.

[4] The Magistrate terminated proceedings but ordered that the respondent pay $100 compensation to the victim. He noted that it was a domestic dispute and that the accused "has suffered enough". The Magistrate further stated that he was hesitant to convict him because he needed to find employment.

[5] The State with the consent of the D.P.P. appeals against the termination and the penalty of $100 compensation on the grounds that the decision is wrong in principle.

[6] A domestic violence offence which this obviously is cannot be reconciled and in any event the Court record notes that the victim did not want to reconcile. It is incumbent upon any tribunal or officer of the Court to have regard to the Domestic Violence Decree which came into force on the 1st December 2009. The decree was enacted to protect persons, men, women and children, from abuse in a domestic environment and if the Courts do not make findings or rulings within the spirit of the Decree, then that altruistic aim is thwarted.

[7] The Magistrate states that the accused "has suffered enough". He has no regard for what his wife suffered by having her head and face rather savagely attacked.

[8] When persons embark on criminal offences, they discard their rights to future employment and the right to be employed can never stand in the way of a rightful conviction.

[9] The Magistrate's orders below were totally inappropriate and they are quashed. Pursuant to section 256(2)(e) I order that a conviction be entered against the respondent for the assault occasioning actual bodily harm.

[10] An appropriate sentence for an unprovoked assault such as this after a plea of guilty would have been nine months' imprisonment, but given that this is an appeal by the State and the respondent has had reasonable expectation of freedom for the past one year, I order that he now serve a term of imprisonment of six months. That term will be suspended for a period of two years.

[11] The State's appeal succeeds.

Paul K. Madigan
JUDGE
At Lautoka
9 June 2011