State v Chand - Sentence [2020] FJHC 971; HAC309.2020 (18 November 2020)

IN THE HIGH COURT OF FIJI

AT SUVA

[CRIMINAL JURISDICTION]

High Court Criminal Case No. HAC 309 of 2020

BETWEEN : STATE

AND : DINESH CHAND

Counsel : Ms S Tivau for the State

Ms Kean and Ms Manueli for the Accused

Dates of Hearing : 26 & 27 October 2020

Closing speeches : 28 October 2020

Date of Summing up : 30 October 2020

Date of Judgment : 03 November 2020

Date of Sentence : 18 November 2020

SENTENCE

1. Dinesh Chand, you stand convicted for one count of attempted murder contrary to section 44 and section 237 of the Crimes Act. The particulars of offence are as follows;

“Dinesh Chand on 22^nd August 2019 at Suva in the Central Division attempted to murder Shakunthala Devi.”

2. After a full trial the assessors returned with a unanimous opinion of guilty and subsequently you were convicted by this Court on 03 November 2020.
   
3. According to the evidence adduced in this case you are married to the victim. However, she had been separated from you at the time of the offence. On 22 August 2019 the victim visited your place to see the children. You even took her to a doctor that evening as she was having a swollen toenail. The victim stayed the night at your place after returning from the doctor. When she was asleep, she felt someone choking her. Later that night she once again felt pain on her neck. When the victim woke up, she saw you right in front of her with a rod in your hand. The victim suffered a life-threatening stab injury on her neck.
   
4. It was also revealed that you were angry for some reason before you committed this offence. Also, it came to light that you committed this offence while there was a final domestic violence restraining order for non-molestation in place for the safety of the victim.
   
5. You were in a position of trust and you grossly breached that trust by unleashing physical violence on the victim at a time that the victim least expected you to attack her. You took advantage of her vulnerability when she was sick and fast asleep. You had no regard for the safety of the victim. It was also an unprovoked attack on the victim.
   
6. I have taken into account the Victim Impact Statement tendered by the State. The victim has stated that she still suffers from the effects of the injury inflicted on her neck. She still seeks medical treatments and suffers from pain and discomfort. She has stated that her medical condition affects her employment as well. The victim impact Statement clearly shows the physical and emotional effects on the victim as a result of your offending.
   
7. You committed this offence in domestic context. Moreover, in breach of a domestic violence restraining order which was already in force. Nevertheless, you were not charged for breach of DVRO. The State submitted a copy of the domestic violence restraining order issued against you. It is a final order for non-molestation made on 06 February 2017 and you committed this offence in breach of that order. I consider the breach of DVRO as a severe aggravation of your offending since you are not separately charged for breach of DVRO.
   
8. I must reiterate that there is no tolerance for domestic violence offences in our society anymore. Violence at home has no excuses or justifications regardless of nature or level of harm. Your actions abundantly demonstrate violation of trust and security that must exist in domestic relationships. Although the previous approach of the courts was that offences in domestic context should be seen as no less serious than others, now the UK Sentencing guidelines emphasize that domestic context of offending makes it more serious as it represents a violation of trust and security in a domestic relationship.
   
9. I have considered the mitigation submissions filed by your counsel;
   
   1. You are 47 years old.
   2. Since separation from your wife in 2017 you have been raising your three sons aged 18, 17 and 15 years.
   100. You are a taxi driver.
   4. You are a first offender.
   5. You have cooperated with the police.
   6. You suffer from primary hypertension.
   7. You have been in remand custody for 6 weeks.
      
10. The victim has also indicated to Court that she wishes to forgive you. She has asked for a chance to be given to you to allow you to support your family. She has also expressed her willingness to reconcile with you.
    
11. However, it must be made clear that reconciliation following domestic violence does not bear any value in sentencing a perpetrator of domestic violence. Forgiveness and reconciliation between parties in domestic violence cases have always been regarded with skepticism. The UK sentencing guidelines on domestic abuse states the following in respect of the wishes of the victim in sentencing (para 10 of “Overarching Principles: Domestic Abuse 2018”);
    

“A sentence imposed for an offence committed within a domestic context should be determined by the seriousness of the offence, not by any expressed wishes of the victim. There are a number of reasons why it may be particularly important that this principle is observed within this context:

a) The court is sentencing on behalf of the wider public.

b) No victim is responsible for the sentence imposed.

100. There is a risk that a plea for mercy made by a victim will be induced by threats made by, or by a fear of, the offender.

4. The risk of such threats will be increased if it is generally believed that the severity of the sentence may be affected by the wishes of the victim.”
   

12. Therefore, it must be noted that the victim’s wishes in respect of forgiveness and reconciliation cannot be considered in sentencing offenders in domestic violence offences.
    
13. The punishment for attempted murder is mandatory life imprisonment. However, the Court has discretion to set a minimum term before pardon may be considered.
    
14. According to the judgement in Balekivuya v State [2016] FJCA 16; AAU0081.2011 (26 February 2016) when a person is sentenced the trial judge is required to exercise the discretion to set a minimum term in two steps. firstly, the court should consider whether a minimum term should be set. Secondly, it must consider the length of the term.
    
15. Having taken into account the aggravating features, your personal circumstances, mitigating factors, your previous good behavior and the time you spent in custody I decide to set a minimum term of 8 years in this case.
    
16. Accordingly, I sentence you to mandatory life imprisonment with a minimum term of 8 years to be served before pardon may be considered.
    
17. Further I issue a permanent domestic violence restraining order for non-molestation and for non-contact for the safety of the victim.
    

30 days to appeal to the Court of Appeal.

Rangajeeva Wimalasena
Acting Judge

At Suva
18 November 2020

Solicitors

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