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Kumar v State [2014] FJHC 152; HAA005.2014 (13 March 2014)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 005 of 2014

BETWEEN:

SANJEEV KUMAR
Appellant

AND:

THE STATE
Respondent

Counsel: Mr. A. Kohli for the Appellant
Mr. S. Vodokisolomone for the Respondent

Date of Hearing: 12 March 2014
Date of Judgment: 13 March 2014

JUDGMENT

[1] This is an appeal against sentence only.

[2] The Appellant was sentenced to 2 years' imprisonment by the Magistrates' Court after he pleaded guilty to a charge of assault causing actual bodily harm contrary to section 275 of the Crimes Decree.

[3] The facts were that the Appellant and the victim was a married couple at the time of the assault. Together they have a 9-year old daughter. They resided in Suva. He worked as a joiner.

[4] Following a domestic dispute, on 11 November 2013, the victim returned to her parents' home in Labasa from Suva. The next day, the Appellant followed the victim to her parents' home and upon arrival there, he told her to return to Suva with him. When the victim refused, the Appellant punched her in the face and head. After punching her, the Appellant picked up an iron rod and struck the victim in her leg. She fell down and cried out for help. The victim's mother heard the call for help and intervened. The matter was reported to the police. The Appellant was arrested and interviewed under caution. The victim was medically examined. The medical doctor noted the following injuries:

1. Head: mild swelling over left scalp area.
2. Left Leg: pinch cut to the leg- slight deep in the end.
   

[5] In mitigation, the Appellant said he was 30 years old, looking after his daughter and was asking for forgiveness.

[6] In sentencing the Appellant, the learned Magistrate said the charge was a domestic violence offence and not reconcilable. The maximum penalty for the charge was 5 years' imprisonment and the tariff was a discharge to 12 months imprisonment. The learned Magistrate picked 3 years as his starting point and after adjusting for the mitigating and aggravating factors, arrived at a term of 2 years' imprisonment. The learned Magistrate said he would not suspend the sentence because 'no one should be assaulted with a rod'.

[7] The grounds of appeal are as follows:

a. That the Learned Magistrate erred in law and in fact in convicting the Appellant without taking into consideration the provisions of Section 15 of the Sentencing & Penalties Decree 2009;
b. That the sentence is harsh and excessive and inconsistent with other sentences handed out by the same Court and other Courts in Fiji for similar offences;
c. That the sentencing is wrong in principle;
d. That the Labasa Magistrate's Court had in similar offences in the past handed out far more lenient sentences.

[8] Section 15 of the Sentencing and Penalties Decree provides for a range of sentencing orders when an accused is found guilty of an offence by a court. The options are discretionary. When considering an appropriate order, the court is not obliged to consider every available option. The appropriate order will depend on the facts of each case. On the facts of this case, the learned Magistrate exercised his discretion to record a conviction and order that the Appellant serve a custodial sentence. This option was available under section 15 (1) (d) and this Court cannot find any fault with the learned Magistrate's discretion.

[9] Unfortunately, counsel for the Appellant cited only one case under the repealed Penal Code to argue grounds 2 to 4. The relevant guideline cases are those that involved domestic violence.

[10] In Raike v. State [2013] FJHC 383, HAA10.2013 (9 August 2013), the offender was sentenced to 6 months imprisonment for punching and kicking his girl friend over a domestic dispute. On appeal, Madigan J upheld the sentence saying that although the tariff for this offence was from a suspended sentence to 9 months imprisonment, terms up to 18 months are in order in the domestic violence cases.

[11] In Rasisoqoni v. State [2011] FJHC 32, HAA 004.2011 (7 February 2011), this Court upheld a sentence of 6 months imprisonment imposed on a husband who punched and kicked his wife, causing lumps, bruises, lacerations and swellings in the head and face.

[12] In the present case, the learned Magistrate correctly pointed out the use of an iron rod, the domestic relationship and the physical injuries were the aggravating factors. The mitigating factors were the Appellant's guilty pleas, remorse and previous good character. However, when picking 3 years as his sentencing point, the learned Magistrate gave no reasons why he picked up a term outside the higher end of the tariff for assault causing actual bodily harm. It is an error to pick up a starting point term outside the higher end of the tariff without any justification. The reason for identifying the tariff for an offence is to bring uniformity in sentences. When a starting point is picked from outside the higher end of the tariff, the sentencer may end up with a disproportionate or an excessive sentence, as is the case in this appeal.

[13] On an objective seriousness of the offence, 6 months is an appropriate starting point. The aggravating factors are offset with the mitigating factors. In all circumstances of this case, a sentence of 6 months imprisonment is appropriate.

[14] The sentence imposed by the learned Magistrate is quashed and substituted with a term of 6 months imprisonment. The use of an iron rod justifies an immediate custodial sentence. A permanent domestic violence restraining order with standard non- molestation conditions is issued against the Appellant. The appeal is allowed to this extent.

Daniel Goundar
JUDGE
At Labasa
March 2014

Solicitors:
Office of Messrs Kohli & Singh, Labasa for Appellant
Office of the Director of Public Prosecutions, Labasa for State