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State v Gir [2012] FJMC 212; Criminal Case 557.2012 (4 September 2012)

IN THE MAGISTRATES COURT
AT NASINU

Criminal Case No. 557/12

STATE

-v-

SHAMENDRA RAM GIR

PC Ravi for the State
The accused is present and unrepresented

SENTENCE

1. You, SHAMENDRA RAM GIR, are here, to be sentenced on admission of guilt on your own accord for the following offences namely:

CHARGE:

FIRST COUNT

Statement of Offence [a]

2. ASSAULT OCCASIONING ACTUAL BODILY HARM: Contrary to Section 275 of the Crimes Decree No. 44 of 2009.

Particulars of Offence [b]

3. SHAMENDRA RAM GIR on the 16th day of April, 2012 at Nasinu in the Central Division unlawfully assaulted NIMISH SHIVEN SINGH thereby occasioning him actual bodily harm.

You pleaded guilty to the charge at first date. I am satisfied that your plea is unequivocal and you understand the repercussion your plea. I also satisfied the facts proved all ingredients/elements of charge.

4. SUMMARY OF FACTS can be reproduced as follows;

1. Accused, Shamendra Ram Gir, 42 years, taxi driver of Lot 25, Qari Place, Nadawa assaulted Nimish Shiven Singh PW1, 7 years, Class 2 Student of Rishikul Primary School of the same address with a belt, on 16/4/12 at about 1930 hours.
   
2. Accused is the step father of PW1. On the above mentioned time and date, PW1 was at home when accused approached him as to why he did not complete his homework. Accused got angry, removed his black leather belt and hit PW1 3 times on his left leg and thigh.
   

5. Maximum penalty could be imposed for this offence is five years imprisonment.

6. It was held in State v Tugalala [[2008] FJHC 78; HAC025S.2008S (29 April 2008), the tariff for this offence appears to range from an absolute or conditional discharge to 12 months imprisonment. As cited in earlier case, in Elizabeth Joseph v. The State [2004] HAA 030/04S and State v. T Alafi [2004] HAA073/A073/04S, tt t it is the extent of the injury which determines sentence. The use of a pen knife for instance, justifies a higher starting point. Where there has been a deliberate assault, causing hospitaion and with no reconciliatiliation, a discharge is not appropriate. In domestic violence cases, sentences of 18 months imprisonment have been upheld (in Amasai Korovata v. The State [2006] HAA 115/06S

7. Following facts were revealed by the summary of facts placed before the court and will be considered as aggravating factors.

-domestic violence

- offence committed on a child

- by step father

8. In your mitigation you stated that you are 42 years old, in a de facto relationship with the victim's mother. You are a taxi driver by profession and earn $100 per week. You said the child is well behind in his studies so you slapped him to do study well. Therefore you seek court's forgiveness and leniency. The victim's biological father was also present when you pleaded guilty. But biological mother said to the court that the father of the child is the accused. That means within the wedlock the mother of the child had extra marital affair with the accused, now they are living together.

9. Medical Examination form tendered and revealed few healing minor injuries. But things are to be taken out of this is the trauma ordeal suffered to the 7 year old victim because of this incident.

10. In my view, you have committed this crime with anger. Anger does not produce anything apart from the violence and peril of your life and others' lives. You belted a little child. He is your step son. In general anger may cause your and other peoples' life miserable. I do not know the repercussion of this incident to the little child. Your defence was just to chasten and enhance the studies you slapped him. But punish is too harsh to him.

11. You pleaded guilty to the charge at the first instance. Therefore, you are entitled for reduction of your sentence.

12. In sentencing I draw my attention to sentencing principles which set out in Sentencing and Penalty Decree 2009.

Section 4(2) provides;"In sentencing offenders a court must have regard to —

(a) the maximum penalty prescribed for the offence;

(b) current sentencing practice and the terms of any applicable guideline judgment;

(c) the nature and gravity of the particular offence;

(d) the offender's culpability and degree of responsibility for the offence;

(e) the impact of the offence on any victim of the offence and the injury, loss or damage resulting from the offence;

(f) whether the offender pleaded guilty to the offence, and if so, the stage in the proceedings at which the offender did so or indicated an intention to do so;

(g) the conduct of the offender during the trial as an indication of remorse or the lack of remorse;

(h) any action taken by the offender to make restitution for the injury, loss or damage arising from the offence, including his or her willingness to comply with any order for restitution that a court may consider under this Decree;

(i) the offender's previous character;

(j) the presence of any aggravating or mitigating factor concerning the offender or any other circumstance relevant to the commission of the offence; and

(k) any matter stated in this Decree as being grounds for applying a particular sentencing option."

13. I have considered above principles. The maximum sentence is 5 years imprisonment. Considering the tariffs I pick 6 months imprisonment as starting point. For aggravating facts I increase 3 months. For your early pleas, I reduce 2 months. Your mitigation I reduce further 1 month. Now your actual sentence is 6 months.

14. You have two traffic previous convictions. Firstly you disputed those previous convictions then later you admitted those were imposed by Suva Courts.

15. The issue of suspending sentence is discussed in DPP v Jolame Pita (1974) 20 FLR 5, Grant Actg CJ, His Lordship remarks;

"It is only in exceptional circumstances that the suspension of a term of imprisonment is warranted in cases involving violence..." (Emphasis is added)

16. This is a case of domestic violence by step father. Domestic violence is a serious offence and pervades all over the world. Thousands of innocent victims have been battered daily and lamentably most of incidences are not reported to legal authorities. Offence of Assault Occasioning Actual Bodily Harm is a reconcilable offence. But this court notes the offence that you have committed comes within the purview of section 3 (1) and (2) of Domestic Violence Decree 33 of 2009. In that event it cannot be reconciled under section 154(6) of Criminal Procedure Decree No 43 of 2009. Hence the idea of stop violence is apparent in homely environment. The court cannot lightly take this piece of legislation. There are no compelling reasons for suspend your sentence. But nature of the injuries, I act under section 26 (1) of the Sentence and Penalty Decree 2009 to partly suspension of your sentence.

17. This is your sentence. You are sentenced to 6 months imprisonment. Last three months of imprisonment is suspended for 3 years. In addition I placed on you a domestic violence restraining order under section 27 Of DVD that is in future (Life lime or get it cancelled) you should not mentally or physically harass the victim. If you breached this DVRO, you will be punished under section 77 of the Domestic Violence Decree (DVD).

18. 28 days to appeal. Court Officer of this court will issue a copy of DVRO to you now. A copy of this order is given to you for appeal purposes. Further Nature of Suspended Sentence is explained.

On 04th September 2012, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate