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State v Padiyachi [2012] FJMC 133; Criminal Case 700.2008 (19 June 2012)

IN THE MAGISTRATE’S COURT IN LAUTOKA

Criminal Case No 700/08

BETWEEN

THE STATE

AND

JAGDISH PADIYACHI

SENTENCE

1. You, Jagdish Padiyachi are to be sentenced upon pleading guilty to the charge of act with intent to cause grievous harm contrary to section 224 of the Penal Code.
   
2. The maximum sentence for this offence is imprisonment for life.
   
3. You admitted the summary of facts and were convicted accordingly. As per the summary of facts the Complainant is your father. On the 22nd September 2008 you had an argument with your elder brother in regards to the paying for the house labourers. The argument heated up and you tried to fight with the elder brother. The Complainant intervened and he pushed you away. Then you got hold of a glass dish and hit on the nose of the Complainant. The complainant received injuries and the matter was reported to the Police.
   
4. According to the medical report the Complainant had received a laceration on his nasal bridge and the doctor had commented that “the patient may have permanently deformed Nasal Bridge”. The Complainant had been treated in the hospital for two days.
   
5. In State v. Mokubula [2003]FJHC 164 Justice Shameem stated that;
   

“On the basis of these authorities, 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.”

6. In this case you attacked 67 year old your own father who was trying to settle the dispute between you and your elder brother. I consider that as an aggravating feature.
   
7. In mitigation you said that you are 42 years, single and a priest. You said that you seek forgiveness. You promised that you will not re offend. You further informed Court that you have reconciled with the Complainant and now live in the same house.
   
8. Although you claimed to be a priest your conduct does not seem to fall in line with the conduct of a priest. In any event, the Complainant was present in Court and he confirmed reconciliation. However it should be noted that this is not an offence which can be reconciled. Besides you waited for five years until the date of the trial to inform that you have reconciled with your father. I do not see any remorse on your part. Furthermore domestic violence acts of this nature have been repeatedly denounced by Courts. In State V David Batiratu HAR 01/2012 Chief Justice Gates stated;
   

“There may have been association here with reconciliation. Reconciliation is maintained in the Criminal Procedure Decree [section 154]; it was originally provided for in the Criminal Procedure Code at section 163. The promotion of reconciliation applies only to charges for offences of common assault, assault occasioning actual bodily harm, criminal trespass or damaging property. Section 154 of the Criminal Procedure Decree provides a much more detailed section than its predecessor, taking into account appropriate forms of apology, respect for the victim, mandatory counselling, rehabilitation, promises and undertakings to alter habits or conduct, such as the consumption of alcohol or the use of drugs. Most especially the court must be satisfied that reconciliation is in the interests of any victim of crime to proceed in such a manner. This approach gives proper protection to children, women, or vulnerable persons. It also indicates the need for awareness of improper pressures which might be exerted to force through reconciliation. I respectfully suggest the old cases, approving discounts in sentence for cases where the complainant wished to withdraw are no longer the correct approach’: See Rt Peni Baleidraiba Kevetibau v State (1992) 38 FLR 110.”

9. You have 4 previous convictions. However I disregard two of them as they are more than ten years ago. The incident happened in September 2008 and you pleaded guilty only when the case was taken up for trial on the 17th April 2012. I cannot consider your plea as a timely plea of guilt.
   
10. In this case I pick my starting point as 2 years. For the aggravating feature I enhance the sentence by 6 months. For the mitigatory factors I reduce the sentence by 12 months. Accordingly I impose 18 months imprisonment on you.
    
11. In State v. Mokubula [2003]FJHC 164 Justice Shameem further stated that;
    

“As a matter of principle, a suspended sentence is not appropriate for a case of act with intent to cause grievous harm not only because it is contrary to the accepted tariff, but also because section 29(3)(a) of the Penal Code contains a legislative fetter to the section 29 powers to impose a suspended sentence for crimes of violence".

12. However as at now sentencing of persons is regulated by the Sentencing and penalties Decree No 42 of 2009. Although the offence in this case is committed prior to the Sentencing and Penalties Decree, as per the transitional provisions set out in section 61 of the Sentencing and penalties Decree I decide that section 29(3) of the Penal Code has no relevancy anymore.
    
13. Yet I do not think that the circumstances of this case and the guidelines set out by previous Court decisions warrant a non custodial sentence to be imposed on you. The Courts have time and again shown disinclination to impose non custodial sentences for grievous harm charges.
    
14. In the circumstances I impose 18 months imprisonment on you.
    

28 days to appeal.

Rangajeeva Wimalasena
Resident Magistrate
Lautoka.
19.06.2012