State v Prasad [2012] FJMC 207; Criminal Case 565.2012 (27 August 2012)

IN THE MAGISTRATES COURT
AT NASINU

Criminal Case No. 565/12

STATE

-v-

RAVINESH PRASAD

Sergeant Volavola for the Prosecution
The accused: in person

SENTENCE

1. You, RAVINESH PRASAD, are here, to be sentenced on admission of guilt on your own accord for the following offence namely:

CHARGE:

FIRST COUNT

Statement of Offence [a]

ASSAULT OCCASIONING ACTUAL BODILY HARM: Contrary to Section 275 of the Crimes Decree No. 44 of 2009

Particulars of Offence [b]

RAVINESH PRASAD on the 14th day of March 2012 at Nasinu in the Central Division assaulted Keshni Lata whereby occasioning her actual bodily harm.

2. SUMMARY OF FACTS, which you have admitted, can be reproduced as follows;

1. Keshni Lata, PW1, 34 years, unemployed of Lot 5, Sham Place, Makoi.
   
2. Ravinesh Prasad, accused, 38 years, driver also of the same address as PW1.
   
3. PW1 and accused are staying in a defector relationship for 2½ years and have a daughter.
   
4. Accused lives in a two flat house whereby he has put PW1 in flat 2 and in the main flat he stays with his legal wife Reshma Mati, PW2, 34 years, unemployed and two kids.
   
5. On 14/3/12 at about 0500 hours, PW1 saw accused not sleeping with her, she then checked and found him sleeping with PW2. PW1 banged the door of their room.
   
6. Accused got annoyed and came out and punched and kicked PW1 several times whereby she received injuries to her face, forehead and head.
   

3. The offence describes in section 275 of the Crimes Decree and it says;

"275. A person commits a summary offence if he or she commits an assault occasioning actual bodily harm.

Penalty — Imprisonment for 5 years"

4. It was held in State v Tugalala [[2008] FJHC 78; HAC025S.2008S (29 April 2008), the tariff for this offence appears to range from an absolute or conditional discharge to 12 months imprisonment. As cited in earlier case, in Elizabeth Joseph v. The State [2004] HAA 030/04S and State v. Tevita Alafi [2004] 3/04S, that it is this the extent of the injury which determines sentence. The use of a pen knife for instance, justifies a higher starting point. Where there has been a deliberate assault, causing hospitalization and with no reconciliation, a discharge is not appropriate. In domestic violence cases, sentences of 18 months imprisonment have been upheld (in Amasai Korovata v. The State [2006] HAA 115/06S)

5. This is amount to a domestic violence. Domestic Violence pervades all over the world and must be frown up. You pleaded guilty at very inception without going to trial. Thereby you save court's time and resources. The victim is your de facto partner, is also having your 2 ½ years old child. In your mitigation you said you are 38 years and working as a driver in FIRCA. You earn $400 fortnight. You sought court's leniency and forgiveness.

6. You have reconciled with the complainant and she confirmed it in open court. But under section 154(6) of the Criminal Decree 2009, offences pertaining to domestic violence cannot be reconciled. But reconciliation is a strong mitigating factor. You are a first offender.

7. I am mindful of sentencing first offenders. Therefore, I draw my attention to sentencing principles which set out in Sentencing and Penalty Decree 2009.

Section 4(2) provides;"In sentencing offenders a court must have regard to —

(a) the maximum penalty prescribed for the offence;

(b) current sentencing practice and the terms of any applicable guideline judgment;

(c) the nature and gravity of the particular offence;

(d) the offender's culpability and degree of responsibility for the offence;

(e) the impact of the offence on any victim of the offence and the injury, loss or damage resulting from the offence;

(f) whether the offender pleaded guilty to the offence, and if so, the stage in the proceedings at which the offender did so or indicated an intention to do so;

(g) the conduct of the offender during the trial as an indication of remorse or the lack of remorse;

(h) any action taken by the offender to make restitution for the injury, loss or damage arising from the offence, including his or her willingness to comply with any order for restitution that a court may consider under this Decree;

(i) the offender's previous character;

(j) the presence of any aggravating or mitigating factor concerning the offender or any other circumstance relevant to the commission of the offence; and

(k) any matter stated in this Decree as being grounds for applying a particular sentencing option."

8. I note any criminal conviction may harm your employment. But court has power to enter a non conviction Section 16. (1) of said Decree. It says "In exercising its discretion whether or not to record a conviction, a court shall have regard to all the circumstances of the case, including —

(a) the nature of the offence;

(b) the character and past history of the offender; and

(c) the impact of a conviction on the offender's economic or social well-being, and on his or her employment prospects."

9. Section 31(2) provides to impose lesser fine than maximum.

"The maximum fine that a court may impose under sub-section (1) is the maximum amount specified in the provision which prescribes the relevant offence, and a court may impose any lesser fine than the maximum."

10. Section 45(1) gives power to record a non conviction. It Says

"A court on being satisfied that a person is guilty of an offence may dismiss the charge and not record a conviction"

11. I now draw my attention to Section 15(3) of SENTENCING AND PENALTIES DECREE 2009 no: 42 of 2009

"As a general principle of sentencing, a court may not impose a more serious sentence unless it is satisfied that a lesser or alternative sentence will not meet the objectives of sentencing stated in section 4, and sentences of imprisonment should be regarded as the sanction of last resort taking into account all matters stated in this Part."

Now I turn to the Case law in this regard.

12. In Prasad v The State [1994] FJHC 132; Haa0032j.94s (30 September19994) S W Kepa J enunciated that the fact that Appellants are first offenders oug beto very strong mitigaitigating factor in their favour. A prison sentence ought to be the last resort after the court has explored and exhausted all other alternative sentences. (Emphasize is mine)

13. In Prasad v State [1994] FJCA 19; Aau0023u.93s (24 May 1994), Fiji Court of Appeal held that ".... Courts ought to bend backwards to avoid immediate custodial sentence for first offende/i>

14. It has been noted in Prasad v The State [1994] FJHC 132 (Supra) that criminologists recognise that a prison sentence should be the last resort esply where a first offenoffender&#s conc concerned unless the charge is very serious or the offender is dangerous and imprisonment is called for in the public interest or in the interest of the offender himself. (Emphasize is mine).

15. Singh v The State [2000] FJHC 115; Haa0079j.2000s (26 October 2000) Shameem J went on saying;

"However as a general rule, leniency is shown to first offenders, young offenders, and offenders who plead guilty and express remorse. I believe that in this case, every effort should have been made to keep four of the Appellants out of prison. They were first offenders, they were only 18 years old, and they pleaded guilty on being brought to court. Although the 1st Appellant was not 18 years old, he was a first offender and this offence was clearly an aberration during what appears to be an otherwise blameless life."

16. Nariva v The State [2006] FJHC 6; HAA0148J.2005S (9 February 2006) Shammem J again stressed;

"The courts must always make every effort to keep young first offenders out of prison. Prisons do not always rehabilitate the young offender. Non-custodial measures should be carefully explored first to assess whether the offender would acquire accountability and a sense of responsibility from such measures in preference to imprisonment."

17. In State v Mocevakaca [1990] FJ; 8790] 36 FLR 19LR 19 (14 February 1990) Fatiaki J (As he then was) dealt with similar type of situation. His Lordship stressed on sentencing in young offenders. His Lordship added;

"This court has said before and I say it again that our prisons are already too full of young Fijian men and the courts have a duty to try and reverse that trend wherever it is possible and just. In other words, every effort must be made to keep young first offenders out of prison even I might add at the risk of being lenient.

Needless to say, in the case of young first offenders there can rarely ever be any conflict between the general public interest and that of the offender.

If I may say so society has no greater interest than that its young people should became useful law-abiding citizens and the difficult task of the Courts is to determine what punishment or treatment gives the best chance of achieving that end. The realisation of that objective is the primary and by far the most important consideration in sentencing young first offenders." (Emphasize is mine).

18. Thus as a first offender and according to the Sentencing Principles, I think you should be given another chance. If I convict you, your future may be in a peril. The injuries are minor and patient/victim was treated outward. I consider all attendant circumstances. In this legal backdrop I wish to act under sections 15(1) f and 45(1) of the Sentencing and Penalty Decree 2009. I therefore dismiss the charges against you.

You are discharged and you should pay $200 as the State Cost. At all times domestic violence are to be denounced. Therefore, in addition you are placed on life time domestic violence non molestation restraining order. If you cannot live with your partner, you can take legal actions, but stop violence. The court wishes you happy peaceful life; further this sentence will not affect your job or future prospects.

19. 28 days to appeal.

Delivered in open court on 27th August 2012, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate