Home | Databases | WorldLII | Search | Feedback High Court of Fiji

State v Sen - Sentence [2021] FJHC 378; HAC268.2020 (9 December 2021)

IN THE HIGH COURT OF FIJI

AT SUVA

[CRIMINAL JURISDICTION]

CRIMINAL CASE NO. HAC 268 OF 2020

STATE

V

KRISHNAL KRITESH SEN

Counsel: Mr Z Zunaid for the State

Mr K Chang for the Accused

Date of Hearing: 7 December 2021
Date of Sentence: 9 December 2021

SENTENCE

[1] The Accused has pleaded guilty to the following charges:

Count One: Causing grievous harm contrary to section 255(a) of the Crimes Act.

Count Two: Damaging property contrary to section 369(1) of the Crimes Act.

Count Three: Common assault contrary to section 274(1) of the Crimes Act.

[2] The victim is the spouse of the Accused. They have been married for about two years. Both are in their twenties. Together they have one child. He is a bus driver while the victim is a stay home mum.

[3] The first incident of violence occurred on 3 September 2020. On this day the Accused returned home from work and questioned the victim about her whereabouts during the day. They ended up arguing and the Accused swore at the victim. Later on that day, the Accused threatened to throw hot oil on the victim when he saw her frying chips in a pan. As she was leaving her cooking, the Accused picked up the pan and threw the hot oil on the victim’s back. The victim wanted to report the incident to police but the Accused stopped her by locking her inside the house.

[4] The second incident occurred on 7 September 2020 when the Accused took the victim’s mobile phone and broke it to stop her from contacting the police.

[5] The third incident occurred on 8 September 2020 when the Accused returned home and had an argument with the victim. During the argument he swore at the victim and punched her on her hand and ribs.

[6] The matter was reported to the police and the victim was medically examined. The victim had sustained a burn injury (blisters) on her lower back which was more than 72 hours old. No bruising or swelling wing was noted.

[7] Under cau the Athe Accused admitted damaging the victim’s phone but denied assaulting her.

[8] I have a duty to cer a r of factors unde under the Sentencing and Penalties Act in order to explain the sentencingncing discretion of the court.

[9] In exercising my discretion I am obliged to consider both the objective seriousness of the offence and the seriousness of the actual conduct of the Accused.

[10] Objective seriousness is determined by taking into account matters such as the maximum penalty and any statutory aggravation prescribed for the offence. Causing grievous harm is punishable by life imprisonment, damaging property is punishable by 2 years imprisonment and common assault is punishable by 1 year imprisonment. Since all three offences were committed against the spouse of the Accused, the offences are domestic violence. The serious offence is causing grievous harm.

[11] In State v Mokubula [2003] FJHC 164; HAA0052JS2003S (23 December 2003) Shameem J formulated the following sentencing tariffs and guidelines for the offence of causing grievous harm after reviewing earlier rities:

On the basis of these authorities, the, the tariff for sentences under section 224 of the Penal Code, is between 6 months imprisonment to 5 years imprisonment. In a case of an attack by a weapon, the starting point should range from 2 years imprisonment to 5 years, depending on the nature of the weapon. Aggravating factors would be:

1. Seriousness of the injuries;
2. Evidence of premeditation or planning;
3. Length and nature of the attack;
4. Special vulnerability of the victim;
   

Mitigating factors would be:

1. Previous good character;
2. Guilty plea;
3. Provocation by the victim;
4. Apology, reparation or compensation.
   

[12] The act of throwing hot oil on another person is a serious conduct. There was no provocation by the victim when she was assaulted. When she heard the threat she was walking away when the Accused threw the hot oil on her lower back. Fortunately, she did not sustain serious injury. By the time she was medically examined her blisters were healing.

[13] The victim has written a letter to the Director of Public Prosecutions to withdraw her complaint against the Accused. However, the Director has decided, and quite rightly, to continue with the prosecution. Counsel for tate has inforinformed the Court that the victim has decided to continue with her marital relationship with the Accused. He has gized to her and she has accepted his apology.

[14] The Accused has pleaded guid guilty to the charges. The guilty pleas has saved the court’s time and resources. Further, the Accused has taken responsibility for his crime and is genuinely remorseful. He is a first time offender. These are strong mitigating factors.

[15] However, the court’s duty is denounce the crime of domestic violence and pass a sentence that has an effect of deterrence on the offender and others. As this Court said in State v Kailoma [2018] FJHC 763; HAC46.207 & HAC63.2017 (21 August 2018) at [16]:

Family violence must be denounced. The primary purpose of sentence is deterrence, both special and general.

[16] In this case, the victim had sustained a physical injury as a result of the attack on her by her partner. Her trust was breached. The violence continued when the Accused damaged her mobile phone and assaulted her on her hand and ribs.

[17] After takll these factors into account the Accused is convicted and sentenced as follows:

Count One: Causing grievous harm – 12 months imprisonment.

Count Two: Damaging property – 3 months imprisonment.

Count Three: Common assault – 3 months imprisonment.

[18] All terms are made concurrent. The total effective sentence is 12 months imprisonment.

[19] The Accused had spent 1 year in custody on remand. The remand period is taken as sentence already served. The Accused is released from custody forthwith.

[20] A permanent domestic violence restraining order with standard non-molestation conditions is issued against the Accused for the protection of the victim.

. ...........................................
Hon. Mr Justice Daniel Goundar

Solicitors:
Office of the Director of Public Prosecutions for the State
Legal Aid Commission for the Accused