Chand v State [2011] FJHC 593; HAA024.2011 (23 September 2011)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.: HAA 024 OF 2011

BETWEEN:

MAHEND CHAND
Appellant

AND:

STATE
Respondent

Mr A. Kohli for the Appellant
Mr. W. Pillay for the State

Dates of Hearing: 19th and 21st September 2011
Date of Judgment: 23rd September 2011

JUDGMENT

[1] On the 29th July 2011, the appellant entered an unequivocal plea of guilty to one charge of assault causing actual bodily harm contrary to section 275 of the Crimes Decree 2009. He was sentenced to a term of imprisonment of four months and now appeals that sentence on the grounds that it was harsh and excessive and secondly that similar cases have received more lenient sentences.

[2] The facts admitted by the appellant in the court below were that on the 12th June 2011 at 7.30pm the appellant was drinking grog at home when an argument developed between him and his wife over her proposed visit to her family. The appellant pushed and punched his wife causing her to fall and hit her head on the stud of the house. The victim wife reported the matter to the Police the next morning and she was medically examined. The accused was arrested and admitted hitting the victim.

[3] The maximum penalty for this offence is five years imprisonment and the tariff ranges from a suspended sentence where there is a degree of provocation to nine months imprisonment for more serious assaults. (Devi HAC 4 of 1998, Seraka HAA27.2008). It was said in Korovata (2006) HAA115/06S that in domestic violence cases terms of 18 months could be justified.

[4] The learned Magistrate took a starting point of seven months imprisonment and enhanced that by two months for the aggravating feature of the assault being on his own wife. She then deducted three months for his mitigating features said to include remorse, reconciliation and co-operation with the Police and added a further discount of two months for the early guilty plea bringing the final total sentence to four months imprisonment.

[5] Mr Kohli for the appellant prays that the sentence is inconsistent with other sentences handed down for this offence in similar circumstances. He has not produced any cases to show this, but in any event it is a spurious submission. Every case turns on its own facts and it is a futile exercise to try to attach identical sentences to every conviction for the same offence. For every case that he might say attracted a suspended sentence there could be produced cases which have attracted lengthy terms of imprisonment.

[6] In the recent case of Raisoqoni HAA 004.2011S, Goundar J. upheld a six month term imposed by a Magistrate for the same offence, again in a domestic violence context.

[7] In the instant case there was no evidence of provocation whatsoever. The wife was merely asking to visit her family, a request which for some reason appears to have irritated the appellant. His assault was swift, unnecessary and dangerous.

[8] Assaults in a domestic context are particularly odious in that wives, and husbands for that matter, should be able to feel safe in their homes without having their trust in their loved ones betrayed. The learned Magistrate was quite correct in finding that the domestic element to this offending was an aggravating feature.

[9] The sentence is well within the accepted tariff for the offence. The Magistrate has not made any error of law in passing the sentence, and in the circumstances it is an entirely appropriate sentence.

[10] The appeal against sentence has no merit and is dismissed.

Paul K. Madigan
JUDGE

At Labasa
23rd September, 2011