State v Kumar [2001] FJLawRp 57; [2001] 2 FLR 225 (25 July 2001)

STATE v NAND KUMAR

High Court Criminal Appellate Jurisdiction
2 February, 12 April, 25 July, 2001 HAA 014/00L

Common assault – sentencing – minor injuries – compensation to wife paid – what is appropriate sentence in proportion to gravity of offence – principles to consider in absolute discharge – disproportionality to crime committed - Penal Code s44; 1997 Constitution s25(1)

The Respondent police officer was charged with assault occasioning actual bodily harm and common assault of his complainant wife at a supermarket. Having paid $100 in compensation to his wife, and having been interdicted without pay for nearly 3 years, the Court determined that any form of punishment would result in loss of employment, and be disproportionately severe treatment or punishment against the 1997 Constitution section 25(1). It earlier allowed part of a State appeal and rejected a cross appeal by the respondent. It now gives its reasons.

Held – Absolute discharges are appropriate only in a limited number of circumstances, such as where no moral blame attaches or where a mere technical breach of the law has occurred, perhaps by imprudence without dishonesty. Principles to be exercised in sentencing and whether appropriate for Penal Code s44 discharge: nature of the offence, gravity, circumstances of the offender, his pocket, his reputation, civil disabilities consequential on conviction and any other relevant circumstances. Loss of livelihood would be disproportionate to the crime committed.

Appellant discharged absolutely without conviction entered.

Cases referred to in Ruling
CIR v Druavesi [1997] HAA12/97 Judgment 3 July 1997
Fisheries Inspector v Turner [1978] 2 NZLR 233
Halligan v Police (1955) NZLR 1185
Tebbutt v CIR (1999) AAU0005/99S Judgment 27 August 1999
Tipple v Police (1994) 2 NZLR 362

Kevueli Tunidau for the Appellant
Abhay Singh for the Respondent

25 July, 2001

RULING (Reasons)

Gates, J
On 2 February 2001 I had acceded to part of the Appellant's appeal and rejected the cross-appeal of the Respondent. A conviction for the count of assault occasioning actual bodily harm was substituted for the lower court's acquittal on that count. The conviction for common assault was therefore quashed.

On 12 April 2001, I heard both counsel who made submissions as to the appropriate sentence for the more serious charge now substituted. These submissions were helpful.

I will not rehearse the facts again. It is sufficient to recall that this was an assault at the lower end of the scale. The complainant who was then the wife of the Respondent received minor injuries to her right elbow and her right side of her head when she was pulled out by the Respondent from the counter of a supermarket. The injuries required dressing by the doctor. The complainant's husband, the Respondent, was a serving police officer at the time. He took her to the police station over a dispute about jewellery. His behaviour was high-handed and inappropriate for a police officer. He was a first offender.

The Respondent, prior to the sentence, has suffered in various ways. The case went through many adjournments in the Magistrates' Court. For nearly 3 years he suffered interdiction without pay. This had the equivalent effect of a substantial time. His wife had earlier left him. He was trying to look after the two children, to whom he had to act as mother and father. I had been informed that he was to pay $100 to the complainant as compensation, which compensation the victim has now confirmed has been paid. Upon the basis that a punishment, if it were to result in the loss of the Respondent's livelihood with the police, would be disproportionate to the crime committed, I ordered that the Respondent be discharged absolutely without conviction entered. This cannot be a precedent however for the imposition of absolute discharges in cases of this sort.

Section 25(1) of the Constitution provides a statutory right for every person to be free inter alia from disproportionately severe treatment or punishment. Cases are presently before the court which have also urged the need to take into account the rights of children affected by the sentencing process. Clearly this balancing exercise could not assist an accused charged with smuggling heroin or with robbery with violence. But at the lower end of the scale of offences it assumes further significance: see observations of Scott J. in Commissioner of Inland Revenue v Druavesi (unreported) Suva Cr. App. No. HAA12 of 1997: 3 July 1997; approved by the Court of Appeal in Tebbutt v CIR (unreported) Cr. App. No. AAU 0005 of 1999S: 27 August 1999. As I had indicated in my first judgment in this appeal case on 2 February 2001 "absolute discharges are appropriate only in a limited number of circumstances"... I had given two examples taken from English cases. Halligan v Police [1955] NZLR 1185 follows the same principles, and in Tipple v Police [1994] 2 NZLR 362 the discharge resulted from the police having approved the activities the subject of the Accused's charges.

However the circumstances of this case would, but for the harsh consequences for this Accused, demand a conviction to be entered and perhaps a fine to be ordered. It is appropriate to refer to the reasoning of Richard J. in Fisheries Inspector v Turner [1978] 2 NZLR 233 at p241 who described the extent of the sentencing discretion for a section not very different from Section 44 of Fiji's Penal Code:

"In considering the exercise of the discretion under s42 the Court is required to balance all the relevant public interest considerations they apply in the particular case; or; as s42(1) puts it, 'after inquiry into the circumstances of the case', which must refer to all the circumstances that are relevant in the particular case before the Court. It must have due regard to the nature of the offence and to the gravity with which it is viewed by Parliament; to the seriousness of the particular offending; to the circumstances of the particular offender in terms of the effect on his career, his pocket, his reputation and any civil disabilities consequential on conviction; and to any other relevant circumstances. And if the direct and indirect consequences of a conviction are in the Court's judgment, out of all proportion to the gravity of the offence, it is proper for a discharge to be given under s 42." (underlining added)

In view of all the circumstances here and to avoid the risk of loss of employment, I am prepared to exercise a judicial discretion in the Respondent's favour by not entering a conviction. These are the reasons for the absolute discharge without conviction published earlier.

Appeal allowed.

Marie Chan