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State v Chand [2000] FJHC 137; Hac0006.1999l (30 August 2000)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
Criminal Jurisdiction

CRIMINAL APPEAL NO. HAC 0006 of 1999L

BETWEEN:

STATE

v

DINESH CHAND
f/n Ram Charan

Ms L Fagbenro for the State
Mr G P Shankar for the Accused

SENTENCE

I have considered what has been said in mitigation on behalf of the accused. He is 44 years old, married with 3 children. He supports two of his children. One is 21 years old. He still sells ice-cream for a living and makes about $8-$10 profit from this per day. I am informed he has moved out of the area where this offence took place. He lives in his own house somewhere else. Defence Counsel states that this was not a premeditated offence but committed spur of the moment. Issue of self-defence and provocation was raised.

I have also considered the submissions by learned State Counsel on sentencing guidelines for similar offences. I acknowledge that the offence of Act With Intent To Cause Grievous Harm is a very serious offence within out Penal Code.

It carries a maximum sentence of life imprisonment. However, as is clear from the authorities cited each offence has be to considered on its own facts and the circumstances of the offending. In the cases of Ram Sami;Rajesh Kumar: and Shiu Sami & S Kumar cited by State Counsel all involved attacks by cane knives. In Fiji a can knife is a lethal weapon. In this case a ice-cream scrapper was used. This was a tool of the trade of the accused. I accept that there was no premeditation in this offence.

The assessors reached a unanimous verdict of guilty on this offence. The issue of self-defence was apparently not accepted. The evidence on provocation was very flimsy. However, the Court is aware of the tension between the parties. Nevertheless what the accused did is inexcusable.

Archbold, as quoted by learned State Counsel, states that fines and community orders are rare for such offences. In considering the mitigation and the circumstances of the offence I believe this is one of that rare case where the Court does not need to impose an immediate custodial sentence, though a sentence of imprisonment is required. The Court, therefore sentences the accused as follows:-

He is sentenced to 18 months imprisonment suspended for 2 years. He is further fined a sum of $500.00 to be paid within 30 days. From what has been said in mitigation he has the means to pay this fine. In default he is liable for imprisonment of 9 months. The fine will be paid as compensation to Rajnesh Singh s/o Rishi Ram Singh. (Accused is explained the effect of the suspended sentence).

(Jayant Prakash)
ACTING PUISNE JUDGE

DATED AT LAUTOKA:
this Wednesday the 30^th day of August, 2000.

HAC0006.99L