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Prasad v State [2004] FJHC 130; HAA0058.2004 (4 August 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO.: HAA 058 OF 2004

BETWEEN:

RAJESH PRASAD s/o Jaishin Prasad
Appellant

AND:

STATE
Respondent

Counsel: Appellant – in Person
Mr. N. Lajendra – for Respondent

Date of Hearing: 23rd July, 2004
Date of Judgment: 4th August, 2004

JUDGMENT

Background

The appellant pleaded guilty to one charge of acting with intent to cause grievous harm. He was sentenced on the 20th of February, 2004 to 3 ½ years in jail. He appeals against that sentence.

Particulars of the Offence

On the 4th of February, 2004 the appellant and his wife had an argument. He was angry about an alleged extra marital affair she was having. He turned that anger into physical violence. He repeatedly punched and kicked her with his bare feet and then beat her about the body with a broom handle. His rage did not end there. He then went and got kerosene and poured it over her. He said he was going to burn her. He went to get matches and was about to strike the match when his wife managed to escape from the house.

The Appeal

The appellant was unrepresented. He was advised of rights to representation and legal aid but declined these. He elected to proceed with the appeal in person. He relied on the contents of his appeal notice and supplemented that with a hand written letter.

The couple have been married for ten years. The appellant worked as a labourer.

He continues to express great remorse over what he did to his wife. He is concerned that a prolonged detention in jail will completely destroy his marriage and wreck his family relationship with the children. He came to the appeal court supported by his wife. She and he have reconciled. This has been brought about by counseling assistance offered from both Social Welfare and the Salvation Army. Mrs. Prasad does not intend to dissolve the marriage. She wants the relationship to continue. She is having great difficulty surviving without the appellant’s income. She tells me that the children constantly ask about their father and they miss him greatly. She assures me that if the appellant was to return home she would now feel safe.

The appellant tells me that on the day of sentencing he wanted the Court to know that he had reconciled, but was not given the chance to say so. He is mistaken about that because clearly the issue of reconciliation is noted in the Court record.

The appellant strongly asserts that for these reasons the sentence of 3½ years imprisonment was harsh and excessive.

The State filed helpful written submissions. Their position essentially is that this sort of offending cannot be tolerated in a civilized society. They point to a number of decisions that support in principle lengthy, immediate and fully custodial sentences as the inevitable outcome of this kind of domestic violence. In support of that proposition they cite:

1. State v Shiu Sami and Shiu Kumar, Criminal Appeal No. AAU0007 of 1995. The appellant tries to run down the victim with a car. Victim thrown into a drain, breaks leg. Jealousy and love triangle. The Court of Appeal upheld a sentence for 5 years imprisonment.
   
2. Ram Sami v The State, Criminal Appeal No. 5 of 1993. While cane harvesting the appellant became suspicious about the possibility of an affair by his wife with another worker. He pursued the worker into the sugarcane fields and took to him with a cane knife inflicting permanent injuries to both limbs, the head and face of the victim. The High Court sentenced him to 3 years imprisonment. The Court of Appeal upheld that sentence.
   
3. Epeli Delai v The State, Criminal Appeal HAA 022 of 1995S. Domestic argument dissolving into violence where the appellant took to his partner with a piece of timber and hit her repeatedly all over the body until she was unconscious. On appeal the sentence was reduced to 18 months imprisonment.
   

However, on page 15 his honour Justice Pain said:

"Such, a deliberate and prolonged attack with a weapon upon a defenceless woman who suffers these injuries must attract condign punishment. The learned Magistrate rightly observed that this was a serious offence and deterrence was a consideration. The Court must play its part in ensuring that women in the community are protected and the sentence must reflect the disapproval of society to such conduct. For these reasons an immediate prison sentence is appropriate."

I fully agree.

Decision

I see nothing wrong in the sentence that was passed. The learned Magistrate properly constructed her sentencing decision. She considered a proper starting point and then took into account aggravating and mitigating factors to arrive at the total sentence of 3½ years imprisonment.

The learned Magistrate was quite correct that the sentence serves as a "message to potential offenders that resort to violence in settling domestic disputes is not and will not be tolerated by the Court."

It is always difficult for the Court to balance the personal and private interests of a family against the proper sentencing principle and public interest in domestic violence cases.

Frequently by the time of sentence and often at sentence appeal victims and offenders have made up their differences and simply want to move on in life. Perhaps this is created out of a sense of duty born out of years of companionship. Often these pleas are made because families struggle financially in the absence of the prime breadwinner. Frequently the Court gets to form a view that the reconciliation is more to do with issues of power and dominance from the domestic relationship where the victim has become so dependent on her abuser and so powerless that she has learned only helplessness and cannot make wise life choices because of that debilitation.

It is for that reason that while the Court may have sympathy for the late plea of reconciliation nonetheless this must be weighed against the need for vigilance in the eradication of domestic violence. The public have a right to expect zero tolerance for any violence especially that occurring within the home. The protection of the weak and powerless in society requires a movement from rhetoric to reality.

The reality for this appellant is that he deserved an immediate custodial sentence of some length to properly punish his actions, deter him and demonstrate to potential offenders like him that anger converted into violent action particularly against the powerless will not be tolerated. The rhetoric of reconciliation has to survive the reality of the rule of law to properly influence sentence. It has not done so here.

Conclusion

The sentence was well within the range of available penalties for offending of this kind. It was not harsh and excessive. The appeal is dismissed.

Gerard Winter
JUDGE

At Suva
4th August, 2004