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State v Nandan [2017] FJMC 6; Criminal Case 1590.2016 (27 January 2017)

IN THE MAGISTRATES’ COURT OF FIJI

AT SUVA

Criminal Case No: - 1590/2016

STATE

V

PREM NANDAN

Counsel : Mr.R.Kumar for the State

Mr.Ravuniwa for the Accused

Date of Sentence : 27^th of January 2017

SENTENCE

1. PREM NANDAN, you were convicted after a trial to one count of Act with Intend to cause Grievous Harm contrary to section 255(b) of the Crimes Decree and one count of Criminal Intimidation contrary to section 375(1) (a) (ii) (iv) of the Crimes Decree.
2. The victims and you were neighbors and on 19/09/2016 the 1^st complainant was about to go to school when you threatened her with rape. Hearing this 2^nd complainant came to inquire about that, when you stabbed him with a kitchen knife in his chest and back. Even though you denied committing these offences the prosecution managed to prove them during the trial.
3. The maximum sentence for Act with Intent to Cause Grievous Injuries is life imprisonment.
4. In State v Drelinavai [2014] FJHC 309 his Lordship Justice Madigan said :

“The maximum penalty for this offence is life imprisonment. Various cases, but in particular MabaMokubula HAA0052of 2003, have held that the tariff for the offence must be from 2 years to 5 years imprisonment, and more in a domestic violence context.

In the Mokubula case, Shameem J. analysed several cases from the High Court and the Court of Appeal and concluded that in an attack by a weapon, the starting point should range between 2 years and 5 years, depending on the weapon used. She added that a suspended sentence in not appropriate.

Although Shameem J. was considering an appeal of sentence for the identical offence under the Penal Code, the new offence under the Crimes Decree has the same maximum penalty and this Court does now confirm that the tariff is a term of immediate imprisonment from 2 to 5 years, and the nature and danger of the weapon used along with the injuries inflicted will be the determinants of where in that range the starting point is taken.”

5. For Criminal Intimidation the penalty is 05 years imprisonment.
6. In State V Baleinabodou[2012]FJHC 981 his Lordship Justice Temo said that an accepted tariff would be from 12 months to 04 years for the Criminal Intimidation.
7. In Koroivuki v. State [2013] FJCA 15; AAU 0018.2010 (5 March 2013)his Lordship Justice Goundar discussed about the guidelines in determining the starting point in the following manner:

"In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this stage. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff. If the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range."

8. Considering gravity of offending ,your culpability and the weapon used for the assault , I select 03 years as the starting point for the offence of Act with intend to Cause Grievous Harm which I consider as the base sentence.
9. The aggravating factor is use of a weapon, but since this has been taken in to consideration in selecting the starting point I would not enhance your sentence based on that.
10. In his oral mitigating this morning your counsel submitted that you are 42 years old, in a relationship and remorseful of your behavior. For these mitigating factors I deduct 06 months to reach 30 months imprisonment.
11. You are not entitled to discounts for your previous good character as you got valid convictions.
12. You have been in remand for nearly 04 months and pursuant to section 24 of the Sentencing and Penalties Decree to reach 26 months imprisonment.
13. Considering all the circumstances I sentenced you to 16 months imprisonment for the Criminal Intimidation and as this was committed in same transaction order to be served concurrent with the 2^nd count.
14. You threatened a 16 year old school girl with rape and when her father came to her aid stabbed him with a knife. Hence your behavior needs to be denounced with a long custodial sentence.
15. PREM NANDA, you are sentenced to 26 months imprisonment for this charge with a non-parole period of 20 months imprisonment.
16. Since this court is exercising the extended jurisdiction of the High Court case, the parties may appeal against this sentence within 30 days with leave to the Court of Appeal.
    

Shageeth Somaratne

Resident Magistrate