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State v Sharma [2012] FJMC 218; Criminal Case 815.2007 (14 September 2012)

IN THE MAGISTRATE'S COURT
WESTERN DIVISION AT NADI
CRIMINAL JURISDICTION

CRIMINAL CASE NO.815/2007

THE STATE

vs.

GAJENDRA SHARMA

Sgt Naidu for prosecution
Accused appeared in person.
Date of Sentence: 14.09.2012

SENTENCE

[1] You, GAJENDRA SHARMA, are charged with one count of Act with Intent to Cause Grievous Harm 224 (a) of the Penal Code Cap 17. The charged was filed on 5th of May 2007.

[2] On 17th of August 2012 you informed to court that you whish to charge your not guilty plea and record a plea of guilt. You also opted to the trial to be taken in the Magistrates Court. The court allowing your application put the charge to you again. You pleaded guilty to the charge when the charge was read and explained to you again after confirming that you understood the charge. You also confirmed that you record your guilty plea on your own accord and no one induced or forced you to do so.

[3] A summary of facts was submitted by the prosecution, which was put to you and you admitted the facts stated therein. The prosecution tendered a copy of it to court. A copy of the Medical Report of the victim was also tendered.

[4] I have reviewed the facts against the particulars of the offence charged in this case and I am satisfied that it supports the elements of the charge in the information laid against you by the prosecution.

[5] Therefore I convict you as charged.

[6] Any person who with intent to maim, disfigure or disable any person or to do any harm to any person, or ... unlawfully wounds or does any grievous harm to any person by any means whatsoever commits the offence of act intended to cause grievous harm [Section 224 (a) of the Penal Code].

[7] On the 11th of May 2007 you attacked the complainant twice with a cane knife causing injuries to him.

[8] On that day you went into the complainant's compound and confronted with him and returned home, picked up a cane knife and went into the complainant's house and struck him on the back and left arm with the knife.

[9] Aggravating factors: Attacking with the knife, Pain and shock, mental trauma, scar and hospitalization aggravated the offending.

[10] Mitigating factors: Guilty plea, previous good character, remorse and your personal circumstances.

[11] The sentence: The maximum sentence for the offence of act with intent to cause grievous harm is imprisonment for life under section 224 (a) of the Penal Code.

[12] I was established in Viliame Cavubati-HAA 80 of 2001 by Shameem J. That the accepted tariff for this offence should range from a suspended sentence through to 2 ½ years. The court said in Amasi Korovata-HAA 11 of 2009 that the range now should extent up to 4 to 5 years.

[13] This is a serious offence. The tariff for the offence is between 6 months to 5 years imprisonment depending on nature of attack-State v Mokubula [2003] FJHC 164.

[14] You committed this offence in 2007. To be fair to you I must consider the tariff that prevailed during that period.

[15] I therefore taking all into my account, in your case I would take 18 months as my starting point. I add 9 months for the above aggravating factors to arrive at an interim total of 27 months. You had taken some 5 years to record your guilty plea hence you are not entitled to full discount of 1/3 for your guilty plea. Nonetheless, I deduct 4 months for your belated guilty plea. I deduct further 5 months to reflect your previous good character and mitigation. In total you are to serve 18 months imprisonment. You are in remand custody since 17th of August 2012 hence this sentence shall be effective as of that date.

[16] In State v Dinesh Chand (2002) FJCA 50; AAU 0027.2000S (1 March 2002) the Fiji Court of Appeal said:

"...wounding another person with a weapon should, almost always, be visited with immediate imprisonment..."

[17] I note that you are a first offender. You had committed a serious offence. You attacked the innocent complainant with a cane knife twice. I have given your discount for your previous good character. A custodial sentence is warranted by the nature of the offence you had committed. I therefore decline to suspend your sentence though you are a first offender.

[18] You have twenty eight (28) days to appeal.

ORDER

[16] I make the following order:

(a) You are hereby sentenced to 18 months imprisonment. The sentence shall be effective as of 17th August 2012.

...............................................
M H MOHAMED AJMEER
Resident Magistrate

Dated at Nadi this14th day of September 2012.