Kumar v State [2012] FJHC 1225; HAA010.2012 (25 July 2012)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

Criminal Appeal No. HAA 010/2012

BETWEEN:

RAJNIL KUMAR
Appellant

AND:

STATE
Respondent

BEFORE: Mr. Justice P. K. Madigan

COUNSEL: Appellant in Person
Ms M. Fong for the State

Date of Hearing: 17th July 2012

Date of Judgment: 25th July 2012

JUDGMENT

1. On the 25th April 2012, some ten months after first appearance, the appellant entered a plea of guilty to one charge of common assault contrary to Section 274 of the Crimes Decree 2009. After agreeing facts, he was sentenced on the 2nd May 2012 to two months' imprisonment, suspended for 12 months.
   
2. The appellant now seeks to appeal against that sentence.
   
3. The facts agreed in the Court below were that the then accused (this appellant) and his friend (the victim) were watching Television with others. The victim was blocking the accused's view and the accused asked him to move. The accused later got up and punched the victim on the chest, head and face. He was "injured a lot" and the accused's grandmother gave him minor medical treatment.
   
4. The appellant's grounds of appeal are:-
   

i] That the Magistrate erred in finding that the appellant had "repeatedly punched the victim on the chest and face" when that was not the evidence.

ii] That the Magistrate wrongly relied on the guidelines in David Batiratu HAR 001/2012.

iii]The Magistrate failed to consider Sections 43 and 44 of the Sentencing and Penalties Decree 2009.

iv] The sentence is harsh and excessive in all the circumstances.

5. In arriving at this very lenient sentence the Learned Magistrate was highly aware of the maximum penalty (one year) and of the applicable tariff (fine to term of imprisonment). She resisted the appellant's counsel's submission in favour of absolute discharge, basing her view on the dicta of the Chief Justice in the recent case of David Batiratu (HAR 001/2012). She took 6 months as a starting point, allowed a very generous 2 months for the late guilty plea and deducted a further 2 months for the mitigating factors such as youth and previous good character and attempts to reconcile. The resultant sentence of 2 months was suspended for 12 months.
   
6. Counsel before this Court renewed an application for a discharge; although he conceded conviction. He argued that it was a trivial offence and that the appellant had made genuine attempts to reconcile.
   
7. Analysis
   

Despite the appellant's submission that this was a trivial offence, this Court does not agree. The victim had offered no provocation to the appellant apart from standing within his view of a television set. The punches to the head, chest and face (which must have been "repeated" punches because they were to three separate areas) were unnecessary, unexplained and bad tempered.

8. The sentence passed by the Magistrate was lenient in the extreme; she dealt with the question of discharge most fully in her sentence and she took more mitigation into account than she should have.
   
9. The fact that the appellant spent ten months pleading not guilty before changing his plea shows a distinct lack of remorse despite his claims to the contrary and the victim's evident rebuffing of his attempts to reconcile is not surprising.
   
10. This appeal is frivolous being totally without merit and it is dismissed.
    

Paul K. Madigan
JUDGE

At Labasa
26th July 2012