Lal v State [2015] FJHC 441; HAA15.2015 (12 June 2015)

IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA

CRIMINAL CASE: HAA 15 OF 2015

BETWEEN:

RAKESH LAL
APPELLANT

AND:

THE STATE
RESPONDENT

Counsel : Mr. Kumar for the Appellant
Mr. Alvin Singh for the Respondent

Date of Hearing : 22nd of May 2015
Date of Judgment : 12th of June 2015

JUDGMENT

1. The Appellant files this petition of appeal against the conviction of the learned magistrate in Lautoka dated 27th of February 2015. The petition is founded on the ground that the learned Magistrate has erred in law when he sentenced the appellant to a term of imprisonment which is harsh and excessive.
   

Background

2. The Appellant was charged in the Magistrate court for one count of Indecently Annoying any person contrary to section 213 (1) (a) of the Crimes Decree, one count of Assault causing actual bodily harm contrary to section 275 of the Crimes Decree and one count of Breach of Domestic Violence Restraining Order contrary to section 77(1) of the Domestic Violence Decree.
   
3. The Appellant has pleaded guilty for these three counts on the 13th of January 2015 on his own free will. Subsequently, the learned magistrate has convicted him for these offences and sentenced him for 6 months imprisonment for the first count, 14 months and 20 days imprisonment for the second count and 7 months imprisonment for the third count. All three sentences were ordered to be run concurrent to each other with 14 months and 20 days as the main sentence. The learned Magistrate has suspended 6 months of the main sentence for a period of 3 years and ordered the appellant to serve the remaining 8 months and 20 days imprisonment period.
   
4. The submissions of the learned counsel of the appellant is mainly founded on the ground that the learned magistrate has erroneously and excessively taken 12 months for the aggravating factors, which has resulted a harsh and excessive sentence.
   
5. The learned counsel for the respondent having discussed some of the leading authorities in tariff for the offence of Assault Occasioning Actual Bodily Harm conceded that the learned magistrate has erred by taking the same facts to determine the starting point as well as the aggravating grounds.
   
6. None of the parties dispute the tariff for the offence of Assault Occasioning Actual Bodily Harm. The tariff ranges from a suspended sentence where there is a degree of provocation and no weapon used, to 9 months imprisonment for the more serious cases of assault. However, a sentence of 18 months imprisonment has been upheld in a domestic violence case. The learned Magistrate has accurately considered the tariff and then proceeded to select the starting point.
   
7. It appears from the sentence of the learned Magistrate that he has considered the surrounding circumstances of the offence, the nature and seriousness of the injuries caused and section 4 (3) of the Sentencing and Penalties Decree in order to select the starting point of 12 months. He then has considered the inhuman and degrading nature of the attack as one of the aggravating factors. This aggravating factor appears to be founded on the same grounds of the nature and seriousness of the injuries caused and the surrounding circumstances of the offence.
   
8. I now turn to consider the sentencing precedents of the offences of this nature. Justice Gounder has held in Raisoqoni v State [2011] FJHC 32; HAA.004.2011 (17 February 2011) that a sentence of 6 months was within the tariff for a case of assault causing actual bodily harm where the injured person was the spouse of the accused. The victim had suffered injuries of bruises, laceration, lumps and swellings over her head and face.
   
9. Justice Madigan in Chand v State [2011] FJHC 593; HAA 024.2011 ( 23 September 2011) held that a sentence of 4 months is within the tariff for an incident, where the accused had pushed and punched his wife causing her to fall and hit her head.
   
10. In view of these judicial precedents, I find there is a reason for me to intervene in to the sentence of the learned Resident Magistrate pursuant to section 256 (3) of the Criminal Procedure Decree. I accordingly quash the sentence of the learned Magistrate and consider an appropriate sentence in order to reflect the gravity and the appropriate culpability of the Appellant.
    
11. Having considered the summary of facts and the reasons set down by the learned Magistrate, I select 12 months as the starting point. I increase one month for the aggravating factors to reach a period of 13 months. I reduce 4 months for the early plea of guilty and further 2 months for the other mitigating factors that the learned Magistrate has considered. Your sentence has not reached to a period of 7 months imprisonment period.
    
12. Having considered the reasons given by the learned Magistrate to partly suspend your sentence, I do not find any compelling reasons to suspend your sentence of 7 months imprisonment period.
    
13. I do not wish to discuss the tariff and starting point selected by the learned Magistrate in respect of first and third counts as it has not been advanced or argued by the parties during the course of the hearing.
    
14. I accordingly, sentence you to seven months imprisonment period. This sentence is effective from 27th of February 2015.
    
15. 30 days to appeal to the Fiji Court of Appeal.
    

R. D. R. ThusharaRajasinghe
Judge

At Lautoka
12th of June 2015

Solicitors : Office of the Director of Public Prosecutions
Legal Aid Commission