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Kumar v The State [2004] FJHC 115; HAA0049.2004 (25 June 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0049 OF 2004

BETWEEN:

SHAVINESH KUMAR
f/n Ram Karan
Appellant

AND:

STATE
Respondent

Counsel: Mr. M. Raza - for the Appellant
Mr. P. Bulamainaivalu - for the State

Date of Hearing: 17th June, 2004
Date of Judgment: 25th June, 2004

JUDGMENT

The appellant pleaded guilty and was convicted on the 17th of March of this year to one charge of assault occasioning actual bodily harm (Section 245 of the Penal Code, Cap. 17).

The particulars of this offending are that on the 15th of February the appellant was at home. He was drunk. In the early morning the appellant; who was the brother-in-law of the victim; asked his sister-in-law to have sex with him and she declined. He then punched her ten to fifteen times about the face and body. When admitted for medical examination the victim complained not only about those punches but that after she fell down she was kicked in the stomach, the lower back and nape of the neck.

Her injuries were consistent with the described assault. In particular she had six 3cm bruises about the face; in the mouth, left cheek and neck. She also had associated tenderness in the lower part of her body. These soft tissue injuries were found by the doctor to be consistent with blunt blows. She did not require hospitalization but was prescribed bed rest and pain relief.

Grounds of Appeal

The appellant was represented. He filed grounds of appeal:

1. That the learned Magistrate erred in Law and in fact by failing to promote reconciliation.
   
2. A failure by the Magistrate to ensure proper legal representation for the appellant.
   
3. An error in Law by the Magistrate in imposing a custodial sentence which was excessive and harsh.
   

The Appeal

At appeal there were no points or authorities provided in advance of the hearing. However, Mr. Raza on behalf of the appellant enlarged the grounds of appeal by oral submission.

It was submitted that the learned Magistrate should have promoted reconciliation. However, counsel confirmed that the young appellant and his family had not reconciled. The appellant had done nothing to apologise or make amends for the assaults on his sister-in-law.

Counsel further submitted that the learned Magistrate failed to reconcile the summary of facts with the mitigation. It was submitted that such a failure meant the sentence was ill founded. In particular counsel submitted that because of a high degree of provocation the assault was somehow justified. It was submitted that the victim sister-in-law recently separated from her husband had a male guest to the family home. It was submitted that it was a grave insult to the family that she did so. It was said the beating occurred because this young man was so provoked he lost self-control. I find absolutely no merit in that argument. It does not excuse the appellant’s behaviour in any way. It certainly does not justify the savage and brutal beating this drunk young man gave his sister-in-law. There was proper consideration of the excuses offered in mitigation but these were rejected.

Counsel then submitted that the learned Magistrate had failed to properly consider the youth and potential of the appellant particularly bearing in mind that he was a successful student at the Fiji Institute of Technology about to complete his courses in Automotive Engineering and Road Transport.

It was argued that in those circumstances the general policy was to try to avoid a sentence of imprisonment for young first offenders otherwise gain fully employed or pursuing higher education. Mavoa v State was cited in support of this principle. (HAA0068.2000).

Counsel referred to other cases. In particular he sought to rely on The State v Cavubati, HAA0080 of 2001S. The accused in Cavubati meted out far greater violence to his victim. He caused considerable injury. The violence was described as brutal and sustained resulting in fractures and other injuries that required re-constructive dental and plastic surgery. At first instance Cavubati was given a suspended sentence. In my view this sentence was correctly quashed on appeal and substituted with an immediate custodial term of 6 months. The case went further to the Supreme Court and there the sentence was quashed.

A close reading of the Supreme Court Judgment indicates that the merits of the case were not considered. The decision was based on a technical argument only. For these reasons I do not appreciate that this decision assists the appellant much at all.

I do, however, accept the principle that a combination of youth, good character and a bright future can in some circumstances lead to a suspended sentence.

Mr. Bulamainaivalu on behalf of the State submitted that it is not in every case that a judge was required to promote reconciliation. Referring to the section he indicated that where there was serious violence the Court has a discretion as to whether or not to promote reconciliation. He submitted that clearly in this Case the learned Magistrate was of the view that there was serious violence. I accept that view.

Concerning the fact that the accused was unrepresented he submits that the appellant was given his various rights and waived the right to counsel and that the judicial officer did everything appropriately for an unrepresented accused. I accept that submission.

Finally the State submitted on the basis of the decision of Joseph and The State, HAA0030 of 2004S, that this sentence was not harsh and excessive. In Joseph the young accused pleaded guilty to using a pen knife during an assault causing a 4cm long and 1cm deep cut on the right little finger of the victim. She received an immediate 6 month prison sentence. This was upheld on appeal.

Decision

In his judgment the learned Magistrate clearly considered the facts and the attached medical report. The appellant was able to make a full plea in mitigation. That was properly noted. It is difficult to conceive of more that could have been said on behalf of the young offender.

The learned Magistrate then goes on to note the seriousness of the offence and the maximum available penalty. Although he does not create a starting point and then add aggravating features he nonetheless develops a sentencing culpability and marks that with the comment that he would ordinarily give such an offender 18 months imprisonment. The learned Magistrate then goes on to deduct 12 months from that term to reflect the guilty plea and the fact that the appellant was a first offender.

I can see nothing wrong in principle with the construction or delivery of this sentence. The issue is whether the sentence is harsh and excessive as to the duration of imprisonment or its immediacy.

I do not view the term of imprisonment as excessive. In Joseph a penknife was used and this resulted in the young offender receiving a term of 6 months imprisonment. While it is true that Joseph used a penknife in her assault and this appellant used his fists in reality I see little difference between the two assaults particularly as to their victim outcomes.

In Joseph there was one cut. In this case the appellant admitted punching his sister-in-law ten to fifteen times. The medical reports confirmed that these punches were about the face and upper body. The victim complained of kicking as well. This appellant’s drunken beating was in my view as serious an assault as that of the penknife wound in Joseph.

A deduction of 6 months for an early plea equates to roughly a third of the properly constructed sentence. That seems appropriate. Deduction of a further 6 months to allow for the youth and good character of the offender, again roughly a third of the constructed sentence seems appropriate. I am therefore satisfied that the six month term imposed is not excessive, nor wrong in principle.

My sister Justice Shameem in her criminal appeal decision of The State and Naqu & Others, HAA0023 of 2003S (July 2003) addressed the issue of suspended sentences in Fiji. I adopt from page 28 of that decision where her Honour expressed concern at the overuse of suspended sentences. Her Honour noted that in 1991 Tuivaga C.J. issued a circular memorandum to all judicial officers saying that the suspended sentence should not be used in cases of violence and other nominated categories of offences unless there were exceptional circumstances.

Her honour went to note the useful considerations regarding suspended sentences found in R v Petersen [1994] 2 NZLR 533 and quoted from Grant CJ in DPP v Jolame Pita 20 FLR 5:

“Once a Court has reached the decision that a sentence of imprisonment is warranted there must be special circumstances to justify a suspension. Such as an offender of comparatively good character who was not considered suitable in need of probation and who commits a relatively isolated offence of a moderately serious nature but not involving violence.”

I too adopt this principle.

Violent offenders must always expect immediate custody as the prime sentencing option. This meets society’s demand that such offenders be punished, personally deterred and that others may learn by such a public lesson that the use of violence in a civilized society will not be tolerated.

I accept the principle that young promising first offenders need the opportunity of avoiding the totally crushing experience of a fully custodial sentence. However, to suspend a term of immediate imprisonment for a violent offender is wrong in principle. In some rare and exceptional circumstances of the offence the Court may be moved to suspend. Regrettably there are no such circumstances here.

I find this was a drunken beating by a man against a woman. He used his power and dominance to punch her about the face and upper body. He admitted in Court as part of his mitigation that he punched her some 10 to 15 times. That description of the beating alone would have been sufficient for the Court to impose an immediate custodial term. However, the victim goes on to describe in her medical report that she was kicked while she lay on the ground.

At 21 years of age this young man should have known better. He has let himself, his family and his society down. He must be punished and in accordance with proper principle as a violent offender he must serve a term of imprisonment. He and others must learn this harsh lesson. In my view it would offend proper sentencing principle to suspend the sentence of imprisonment and accordingly the appeal is dismissed.

Gerard Winter
JUDGE

At Suva
Friday 25th June, 2004