State v Nischal [2011] FJHC 742; HAC176.2010 (18 November 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 176 OF 2010

BETWEEN:

THE STATE

AND:

NITESH NISCHAL

Counsels: Mr. S. Vodokisolomone for the State
Ms. N. Nawasaitoga for the Accused

Date of Sentence: 18th November 2011

SENTENCE

[1] The accused was charged for Act with Intent to Cause Grievous Harm punishable under section 255 (g) of the Crimes Decree.

[2] When the case was mentioned on 15th September 2010 the Accused pleaded guilty and admitted to the following summary of facts.

"On the 29th day of August 2010 at about 7.30pm in the evening the accused Nitesh Nischal f/n George Sukhu was drinking beer at his residence at Vuci road Nausori when he had an argument with Arunesh Lata the victim about a previous assault case where the accused was charged for assaulting the victim. During the argument the accused stood up took a gallon containing kerosene and poured it all over the victim. The accused than tried to light fire using a lighter to burn the victim when he was stopped by his brother who was drinking together with him. The accused kept on threatening the victim saying that he will burn her. The accused knowing that he could not burn the victim when stopped by his brother assaulted the victim on her face and head."

[3] Being convinced with the plea to be unequivocal the Accused was found guilty and convicted as charged.

[4] Considering the submissions on sentencing and mitigation the Accused was referred to a counseling on anger management.

[5] Counsellor had reported after more than one year of counseling that the Accused reformed himself and he is leading a responsible family life with his wife and children.

[6] Section 255 (g) of the Crimes Decree prescribes maximum penalty as imprisonment for life.

[7] In Rajesh Prasad v State [2004] HAA 058/04S August 2004 the accused alleged that his wife was having an extra marital affair. The accused person punched, kicked and poured kerosene over his wife with the intention to burn her. The wife pleaded reconciliation. His Lordship, Winter J stated in paragraph 5 that;

"Frequently the Court gets to form a view that reconciliation is more to do with issues of power and dominance from the domestic relationship where victim has become so dependent on her abuser and so powerless that she has learned only helplessness and make wise life choices because of that debilitation. It is for that reason that while the Court may have sympathy for the late plea of reconciliation nonetheless this must be weighed against the need for vigilance in the eradication of domestic violence. The public have a right to expect zero tolerance for any violence in the eradication of domestic violence. The public have a right to expect zero tolerance for any violence especially that occurring within the home. The protection of the weak and powerless in society requires a movement from rhetoric to reality". Thus 3 ½ year sentence was upheld to be within the range...

[8] The tariff for the offence of acts with intent to cause grievous harm ranges from 6 months to 5 years imprisonment (State v Mokubula [2003] FJHC 164; HAA0052J.2003S (23 December 2003).

The higher side of the range is reserved for pre-planned attack that results in serious injuries to the victim (Shiu Sami & Shiu Kumar v State Crim App. AAU0007 of 1995).

[9] In the case of Raj v State Cr. App. No. HAA004 of 2009 (27 May 2009), this Court stressed the following point about selecting a starting point for sentence;

"As a matter of principle, starting point should be picked up from within the range. A term outside the range should only be picked if exceptional or special circumstances are present."

[10] Considering the nature of the offence in the light of above sentence I commence your sentence as 12 months imprisonment.

[11] Aggravating factors.

(i) You have no regard to your wife and the family.

Considering the aggravating factor I increase 1 month of your sentence. Now your sentence is 13 months imprisonment.

[12] Mitigating circumstances.

(i) You are married with 4 children.

(ii) You are remorseful.

(iii) You have extensively undergone the counseling programme.

(iv) Presently you are leading a happy married life with the victim and the children.

Considering all I reduce 7 months of your sentence. Now your sentence is 6 month imprisonment.

[13] Considering all I act under section 26 (1) of the Sentencing & Penalties Decree and suspend your sentence for 1 year.

[14] Within the period of suspended term if you commit any offence you will be serving this sentence in addition to the other sentence.

[15] You are sentence to 6 months and the same is suspended for 1 year.

[16] You have 30 days to appeal.

S Thurairaja
Judge

At Suva

Solicitors
Office of the Director of Public Prosecution for State
Office of the Legal Aid Commission for the Accused