State v Chandra [2012] FJMC 77; Criminal Case 486.2011 (17 February 2012)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal Case No 486/11

BETWEEN

THE STATE

AND

PRITESH CHANDRA

SENTENCE

1. You, Pritesh Chandra are to be sentenced upon being convicted for the charge of grievous harm contrary to Section 258 of the Crimes Decree No 44 of 2009.
   
2. The maximum punishment for this offence is imprisonment for 14 years.
   
3. The victim is your wife. On the 20th June 2011 you were drinking beer at home with some friends. The victim over heard that you were planing to go to the sea side to drink with some girls. When you were getting ready to leave, the victim insisted that she should also come with you. When you refused to take her she told you that she knows the reason as to why you do not want to take her. The victim took a bottle of rum and went to the next door house where her mother lives. You followed her and demanded the bottle. You grabbed the bottle and hit her with the bottle on her head. It landed on the left ridge of the victim's eye. The victim received injuries and the matter was reported to the Police. You admitted the summary of facts.
   
4. According to the medical report of the victim she has received a mild head injury due to assault. The doctor has further stated that "head injury in any state is serious injury which can be fatal if left unattended". Also it was observed as per the summary of facts that the victim had fainted at the Police Station when she came to lodge the complainant whereby she was admitted to the hospital.
   
5. In mitigation you said that you were drunk and it happened under the influence of liquor. You said that you will not re offend. Further you informed Court that you have reconciled with the victim and now live together with her.
   
6. It should be noted that committing an offence under the influence of liquor is no defence. It appears that you are trying to shroud your coward acts with drunkenness. The Courts and the society denounce this type of domestic violence acts under any circumstances. Further it should be stated that reconciliation does not reduce the gravity of the offence although it can be considered as a mitigatory factor.
   
7. In State V David Batiratu HAR 01/2012 Chief Justice Gates stated;
   

"There may have been association here with reconciliation. Reconciliation is maintained in the Criminal Procedure Decree [section 154]; it was originally provided for in the Criminal Procedure Code at section 163. The promotion of reconciliation applies only to charges for offences of common assault, assault occasioning actual bodily harm, criminal trespass or damaging property. Section 154 of the Criminal Procedure Decree provides a much more detailed section than its predecessor, taking into account appropriate forms of apology, respect for the victim, mandatory counselling, rehabilitation, promises and undertakings to alter habits or conduct, such as the consumption of alcohol or the use of drugs. Most especially the court must be satisfied that reconciliation is in the interests of any victim of crime to proceed in such a manner. This approach gives proper protection to children, women, or vulnerable persons. It also indicates the need for awareness of improper pressures which might be exerted to force through reconciliation. I respectfully suggest the old cases, approving discounts in sentence for cases where the complainant wished to withdraw are no longer the correct approach': See Rt Peni Baleidraiba Kevetibau v State (1992) 38 FLR 110.

Not only is assault on a police officer not included in the list of offences where reconciliation may be considered, the offence is one too serious by its nature for the matter to be settled in such a way. Though the instant case may be one "not aggravated by degree", it is not one "substantially of a personal or private nature." As a matter of public policy for the maintenance of law and order, assault on police cases like those of domestic violence would be entirely unsuitable for termination by mere amicable settlement".

8. You have 3 previous convictions including one for assault occasioning actual bodily harm. It does not appear that you have attempted to stay away from troubles. However you pleaded guilty saving the Court's time.
   
9. In this case I pick my starting point as 18 months. For the mitigatory circumstances I reduce the sentence by 3 months. For the early plea I reduce another 5 months. Accordingly I arrive at a sentence of 10 months imprisonment.
   
10. The offenders who create violence at home very often get away by exerting pressure on the victims to settle. On the other hand the victims tend to reconcile with offenders due to social stigma and to save their families. Yet the Courts have a duty to send a strong message to those who are minded to indulge in similar acts, that the society condemns domestic violence despite subsequent reconciliations between parties.
    
11. I have taken into account the seriousness of the offence you committed and also the mitigatory circumstances. I am of the view that this offence attracts a custodial sentence as far as the nature of this offence is concerned. However having considered the fact that you have reconciled with the victim I decide to partially suspend the sentence.
    
12. Accordingly I impose 10 months imprisonment on you. I order that you should serve a one month imprisonment and the balance 9 months imprisonment is suspended for 5 years.
    

28 days to appeal.

Rangajeeva Wimalasena
Resident Magistrate
Lautoka.

17.02.2012