Singh v State [2016] FJHC 544; HAA13.2016 (17 June 2016)

IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA

CRIMINAL CASE: HAA 13 OF 2016

BETWEEN : RANDIPNI SINGH

APPELLANT

AND : THE STATE
RESPONDENT

Counsel : Miss P. Chand for the Appellant
Mr. A. Singh for the Respondent

Date of Hearing : 20th of April 2016
Date of Judgment : 17th of June 2016

JUDGMENT

Introduction

1. The Appellant was charged in the Magistrates’ Court in Nadi for one count of Grievous Harm, contrary to Section 258 of the Crime Decree. The Appellant pleaded guilty for the charge on her own free will on the 30th of December 2015. Subsequently, the learned Magistrate sentenced the Appellant for a period of 25 months and 17 days imprisonment with non-parole period of 16 months on the 13th of January 2016. Having being aggrieved with the said sentence, the Appellant filed this petition of appeal on the following grounds inter alia;
   1. The Learned Magistrate erred in law and in principle when he sentenced the petitioner to a term of imprisonment without considering early plea as a separate mitigating factor,
   2. The learned Magistrate erred in fact and law when he failed to justify the imposition of a non-parole period considering the circumstances of the Appellant.
2. The learned counsel for the Appellant and the Respondent consented to conduct the hearing by way of written submissions. I accordingly directed the parties to file their respective written submissions, which they filed as per the direction. Having carefully considered the record of the proceedings in the magistrate’s court and the impugned sentence of the learned Magistrate, I invited the counsel to make further submissions on the ground whether the learned Magistrate erred in law in convicting the Appellant when the summary of facts failed to disclose the specific nature of the injuries on the victim to substantiate the offence of grievous harm. The learned counsel for the Appellant and the Respondent filed their respective further submissions accordingly.

Background

3. It was revealed in the summary of facts which was admitted by the Appellant in the Magistrate’s court that the Appellant had stabbed the victim on his left arm with a piece of broken louver blade on the 28th of December 2015. The victim is the de-facto partner of the Appellant and had been living together for the last two years. On the above mentioned date, the Appellant called the victim to come inside the house while the victim was preparing a washing machine with one Salesh Kumar outside the house. The Appellant then threw the mobile phone of the victim. The Appellant then started to punch the victim. Salesh Kumar came and stop the fight. When the victim went to outside, the Appellant came to the victim holding a louver blade and hit it on the left hand of the victim twice. According to the summery of fact and the medical report, victim had sustained injuries as follows;
   1. 6 cm long x 3cm deep x 2 cm wide laceration on the lateral surface of his left arm, proximal to left elbow,

The Law and Analyses

4. Section 258 of the Crimes Decree states that;

“A person commits an indictable offence (which is triable summarily) if he or she unlawfully and maliciously does grievous harm to another person.”

5. Accordingly, the main elements of the offence of grievous harm are;
   1. The Accused,
   2. unlawfully and maliciously,
   3. cause grievous harm to another person,
6. Section 4 (1) of the Crimes Decree has defined grievous harm as

"grievous harm" means any harm which

1. amounts to a maim or dangerous harm; or
2. seriously or permanently injures health or which is likely so to injure health; or

100. extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, member or sense;

7. The learned counsel for the Respondent in his supplementary submissions stated that the State concedes the fact that the summery of facts does not disclose that the Appellant had caused any grievous harm to the victim.
8. Having considered the nature of the injuries as disclosed in the summary of facts and the medical report, it is my opinion that the injuries sustained by the victim does not fall within the definition of grievous harm as stipulated under Section 4 (1) of the Crimes Decree. Hence, I find that the summary of facts has not disclosed that the Appellant had caused any grievous harm to the victim.
9. Accordingly, it is my opinion that the learned Magistrate has erred in convicting the Appellant on the admitted summary of facts, although the Appellant pleaded guilty on her own free will and admitted the summery of fact. I accordingly set aside the conviction of the Appellant for the offence of grievous harm.
10. I now turn on to my attention to examine whether the admitted summary of fact reveals any minor offence. Section 160 of the Criminal Procedure Decree allows the court to convict a person for a minor offence under certain circumstances. Section 160 of the Criminal Procedure Decree states that;
    1. When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved but the remaining particulars are not proved, the person may be convicted of the minor offence although he or she was not charged with it.
    2. When a person is charged with an offence and facts are proved which reduce it to a minor offence, the person may be convicted of the minor offence although he or she was not charged with it.
11. Being guided by Section 160 of the Criminal Procedure Decree, I find that the admitted summary of facts has revealed a lesser offence of Assault Causing Actual Bodily Harm. I accordingly convict the Appellant for the offence of Assault Causing Actual Bodily Harm, contrary to Section 275 of the Crimes Decree, which carries a maximum sentence of five years of imprisonment.
12. The tariff for the offence of Assault Occasioning Actual Bodily Harm 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. (Gounder J in Jonetani Sereka v The State 2008,FJHC 88, HAA027,2008), (State v Anjula Devi, Crim Case No 04 of 1998) (Basa v State [2014] FJHC 518; HAA12.2014 (15 July 2014). Justice Madigan in State v Sikitora [2010] FJHC 466; HAC067.2010L (22 October 2010) found that;

“The cases of Elizabeth Joseph v State [2004] HAA 03 of 2004 and State v Tevita Alati [2004] HAA 73 of 2004 establish a tariff of 9 months to 12 months imprisonment, the severity of the wound being the determining factor in the starting point. However sentences of 18 months imprisonment have been upheld in domestic violence cases (Amasi Korovata v State [2006] HA 115 of 2006]”

13. The level of the harm and the amount of culpability are the determining factor in the starting point. Having considered the nature of the injuries and the object that was used to cause the injuries, I select 8 months as the starting point.
14. The Appellant and the victim were in a de-facto relationship. Hence, by committing this offence, the Appellant has breached the trust that the victim had for her as his de-facto partner. I consider these grounds as aggravating circumstances for this matter.
15. The Appellant is 27 years old young first offender. She had pleaded guilty for this offence at the first available opportunity, showing her remorse for committing this offence. I consider these facts as mitigating circumstances of this offence.
16. Having considered the aggravating circumstances as per discussed above, I increase six (6) months to reach fourteen (14) months of interim imprisonment period. I reduce two (2) months for your mitigating factors and four (4) months for the early plea of guilt. The final sentence is now eight (8) months of imprisonment period.
17. I concur with the findings of the learned magistrate that he has discussed in paragraph 19 of his sentence. Accordingly, I do not find any compelling reasons to suspend this sentence.
18. I accordingly sentence the Appellant for a period of eight (8) months of imprisonment for the offence of Assault Causing Actual Bodily Harm, contrary to Section 275 of the Crimes Decree. The sentence is effecting from 13th of January 2016.
19. The Appeal is allowed and the sentence is varied as discussed above,
20. Thirty (30) days to appeal to the Fiji Court of Appeal.
    

R. D. R. Thushara Rajasinghe

Judge

At Lautoka

17th of June 2016

Solicitors : Office of the Director of Public Prosecutions

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