State v Lal - Sentence [2017] FJMC 126; Criminal Case 564.2016 (12 October 2017)

IN THE MAGISTRATES’ COURT OF FIJI

AT SUVA

Criminal Case No: - 564 /2016

(HAC 141/2017)

STATE

V

AMAN JEET LAL

Counsel : Ms.D.Kumar(ODPP) for the Prosecution

Mr.Tuicolo (LAC) for the Accused

Date of Sentence : 12^th of October 2017

SENTENCE

1. AMAN JEET LAL, you were charged with one count of Act with Intend to cause Grievous Harm contrary to section 255(a) of the Crimes Act No 44 of 2009(“Crimes Act”).
2. You pleaded guilty for this charge on 28^th of September 2017 and also admitted the following summary of facts presented by the prosecution:

BACKGROUND

The Complainant is Josh Prakash, 48 years, Taxi Driver of Nasinu. The accused person is Aman Jeet Lal, 41 years, Taxi Driver of Narere.

OFFENCE

On 9 February 2016, at about 7.40pm the complainant parked his taxi to drop off some passengers at the back of MHCC, Suva City.

At this time the accused person’s taxi was parked in front of the complainant’s taxi. The accused was loading items in his taxi boot.

The accused person noted the complainant’s registration number and walked over to the complainant and questioned him as to why the complainant swore at him. The complainant informed the accused that he may be mistaken. The complainant was seated inside his taxi while the accused stood outside the complainant’s taxi.

With intent to cause grievous harm to the complainant, the accused person threw a punch at the complainant and then took out a knife from his back pocket with which he stabbed the complainant several times on his shoulder, neck and head. The complainant defended himself with his arms.

After stabbing the complainant, the accused walked back to his taxi. The complainant presented himself at the Totogo Police Station and was conveyed to the CWM Hospital where he was admitted at the Acute Surgical Ward until 11 February, 2016.

MEDICAL EXAMINATION

A medical report was provided which had the following specific medical findings: Right scalp – 1x 1cm laceration, Left neck – lacerations 1 x 1cm, Left arm – Superficial abrasion and right arm – 1 laceration 1 x 1 cm. The examining doctor’s opinion was that the injuries were typical of injury from a sharp object.

INTERVIEW AND CHARGE

The accused person was arrested and interviewed under caution at the Totogo Police Station on 10 February 2016. Under caution, the accused person said that on 6th February 2016, the complainant swore at him and made an indecent gesture with his fingers. On 9th February, 2016, he asked the complainant about why he swore at the accused. He said the complainant denied it and when he turned around to return, the complainant swore at him again. The accused then threw punches at the complainant which he said did not land on the complainant. The accused said he then took a knife from his taxi which was about 5 inches in length and stabbed the complainant with it.

The accused was then charged for the offence of acts intended to cause grievous harm.

3. I am satisfied about your plea was voluntarily and unequivocal and convict you for this offence.
4. The maximum sentence for Act withIntent to Cause Grievous Injuries under the Crimes Act is life imprisonment.
5. In State v Drelinavai [2014] FJHC 309 his Lordship Justice Madigan said :

“The maximum penalty for this offence is life imprisonment. Various cases, but in particular MabaMokubula HAA0052of 2003, have held that the tariff for the offence must be from 2 years to 5 years imprisonment, and more in a domestic violence context.

In the Mokubula case, Shameem J. analysed several cases from the High Court and the Court of Appeal and concluded that in an attack by a weapon, the starting point should range between 2 years and 5 years, depending on the weapon used. She added that a suspended sentence in not appropriate.

Although Shameem J. was considering an appeal of sentence for the identical offence under the Penal Code, the new offence under the Crimes Decree has the same maximum penalty and this Court does now confirm that the tariff is a term of immediate imprisonment from 2 to 5 years, and the nature and danger of the weapon used along with the injuries inflicted will be the determinants of where in that range the starting point is taken.”

6. In Laisiasa Koroivuki v the State [2013] FJCA 15; AAU0018.2010 (5 March 2013) his Lordship Justice Goundar discussed the guiding principles for determining the starting point in sentencing in the following manner:

"In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this time. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff. “

7. Considering the above judicial precedents and based on an objective seriousness of the offence, I select 03 years as the starting point for your sentence.
8. I consider the following as aggravating factors in this case:
   1. Use of an offensive weapon ( 5 inches kitchen knife ) for the assault;
   2. The victim was stabbed in his head and neck which are vulnerable parts in the body.
9. For these aggravating factors I add 02 years to reach 05 years imprisonment.
10. In written mitigation your counsel submitted the following grounds:
    1. You are 43 years old ;
    2. Married with 2 children ;
    100. Sole Bread winner of the family;
    4. Type 2 Diabetes patient ;
    5. Remorseful.
11. Further your counsel submitted that you were provoked by the victim on that day. But there is no evidence to confirm that. But for other mitigating factors I deduct 01 year to reach 04 years imprisonment.
12. You have valid previous convictions and hence not entitle for discounts for your character.
13. Finally I am going to consider how much credit you need to be given for your guilty plea in this sentence.
    14. In UK Guilty Plea guidelines of 2007 it has been held that when an accused pleaded guilty at the first available opportunity the reduction is 1/3 and after a trial date is set 1/4 recommended. But when an accused pleaded guilty at the door of the court or after the trial has started he maybe entitle for only 1/10 discount.
    15. In Fiji this has been discussed comprehensively by his Lordship Justice Madigan in Posate Rainima v The State , Criminal Appeal No AAU 0022 of 2012 where the Lordship said :

“[45] Although the judge passing sentence below took all matters complained of into consideration when assessing an appropriate "global" sentence, it is better sentencing practice to specify terms of discount when allowing for such matters as pleas of guilty, time on remand and clear record for example. The convict and the reader can then see easily the various components of a sentence and sentence appeals could be prevented.

[46] Discount for a plea of guilty should be the last component of a sentence after additions and deductions are made for aggravating and mitigating circumstances respectively. It has always been accepted (though not by authorative judgment) that the "high water mark" of discount is one third for a plea willingly made at the earliest opportunity. This Court now adopts that principle to be valid and to be applied in all future proceedings at first instance.

[47] Pleas of guilty made at later stages than earliest opportunity cause more difficulties in the assessment of how much discount should be afforded to them. It is not for this Court to suggest an appropriate sliding scale because it must remain a matter of judicial discretion. We would however make three points very clear in this regard:

(i) A plea of guilty before trial must be afforded some discount given that the cost of trial (including time and cost of assessors) is saved.

(ii) A plea of guilty at a later stage before a trial involving a vulnerable witness must be given a meaningful discount (say 20-25%) to recognize the fact that the vulnerable witness is not put through the ordeal of giving evidence.

(iii) A plea during trial after an accused has heard unshakeable evidence of a victim/complainant or after an inculpatory caution interview has been admitted into evidence is not deserving of any discount whatsoever.”

16. In this case even though you pleaded guilty without going for a trial this can’t be considered as one made at the earliest opportunity which would have entitle you to 1/3 deduction (16 months) . Perusing the court record I note that when you took your plea on 19^th July 2016 you denied committing this offence and challenged the caution statement also. Only on 14^th September 2017 you changed your plea. Accordingly I deduct only 08 months from your sentence to reach 40 months imprisonment.
17. AMAN JEET LAL, you submitted that the victim swore to you which provoked you to commit this offence. Instead of settling the problem peacefully you decided to took the law in to your hand and punish the victim. Considering the nature of the attack and the weapon used , the victim is fortunate to survive with these kinds of injuries. But your behavior needs to be denounced with a suitable sentence.
18. Accordingly you are sentenced to 03 years 04 months imprisonment for this charge with a non-parole period of 2 years.
19. Since this court is exercising the extended jurisdiction of the High Court case, the parties may appeal against this sentence within 30 days with leave to the Court of Appeal.

Shageeth Somaratne

Resident Magistrate