| Fiji Islands - Chetty v The State - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 32 OF 1998
BETWEEN:
:
RAYLU CHETTY
f/n Dubasi
Appellant
AND:
STATE
Resnt
Appellant in pebr> Mbr> Ms Anuja Sukh Sukhdeo for the State
JUDGMENT
On 27 April 1998 in the Magistrate's Court at Labasa the appellant pleaded guilty to the charge containing two counts, one of act
with intent to cause grievous harm contrary to section 224 of the Penal Code Cap. 17 and the other of unlawful wounding contrary to section 230 of the Penal Code. He was sentenced to imprisonment for twelve months on Count I and to three months on Count 2 consecutive to each other making a
total of 15 months.
This appeal is against severity of sentence.
The appellant stated that when he returned home and saw his wife talking to a man called Eremasi Rokobau (the complainant in the first
Count) he got annoyed and the alleged incident took place. The complainant is actually his brother-in-law which the appellant denied
at first. He said that he thought that Eremasi was having an affair with his wife. He said that this incident happened accidentally.
The appellant is a 44 year old copra cutter. The facts reveal that the appellant picked up another empty bottle and threw it at the
Complainant; it missed him but hit the complainant in the second count.
The learned State Counsel conceded that the charge in Count 1 should have been under section 224(a) and not just s224. She agreed
that the facts do not reveal that the appellant had the 'intent' which is an essential ingredient of the offence. She said that she
cannot read the Medical Reports on the complainant because the relevant portion pertaining to the injury is not decipherable. Ms.
Sukhdeo conceded this would be a case of assault occasioning actual bodily harm and she would ask the Court to convict him of this
lesser offence. Further she submitted that the sentence in Count 2 could be made concurrent to the one in Count 1.
This appeal has to be considered in the light of the surrounding circumstances. The appellant has a previous conviction for the offence
of larceny on 9 December 1997 when he was bound over for one year otherwise he has a clean record and he is of good character. On
the day of the incident he came home after having some drinks and when he saw his wife with Eremasi and when she refused to mix grog
for him and to drink with him he lost his temper and threw a bottle at Eremasi.
It is clear from the evidence, and it is conceded by the State, that the intention to inflict the injury which is an essential element
of the offence is missing from the facts as outlined. It appears that the appellant did not have the intent to 'wound' either of
the complainants. The charge is also defective as the section under which the appellant is charged is not there and this also the
State concedes. There has been very little physical violence in the course of this episode. If the appellant was properly charged,
in the scale of this type of offence it was very much at the lower end of the bracket. These matters I would say mitigated the seriousness
of the offence coupled with the fact that the Medical Reports in relation to the injuries on both the complainants are not decipherable
not only to State Counsel but also to me. Here it is not possible to state the nature of the injury particularly whether they constituted
"wound" as defined under the Penal Code.
It is against the above background that this Court has to face up to the question which is posed by the appellant for its decision.
The first question is whether in the light of all the facts and decided authority, the sentence which the Magistrate imposed was
unduly harsh and excessive. On Count 1 whilst I respect the considerations which led the magistrate to impose the sentence which
he did, it appears likely from his sentencing remarks that the learned magistrate placed too much weight on his belief that the offence
is prevalent, that the appellant intentionally with the object of injuring the complainants and which is not borne out by the facts,
as opposed to the circumstances of the assault. Be that as it may, the fact that it is excessive is manifest establishes error. That
being so this Court is free to sentence afresh. I feel bound to conclude for the reasons given above and because of certain defects
in the charge, the appropriate sentence in this case is that the conviction be set aside for the offence charged and substitute it
with the lesser offence of assault occasioning actual bodily harm contrary to s245 of the Penal Code. He is therefore sentenced to nine months' imprisonment for assault occasioning actual bodily harm suspended for eighteen months.
The accused is also explained his liability if he commits an offence within the operational period of the suspended sentence.
As for Count 2 since he was given three months' imprisonment to be served consecutive to the sentence in the first Count, and he has
already served it and because I have varied the sentence in the first Count, the appellant's sentence is waived to allow for his
immediate release from prison.
The order of the Court is that the appeal is upheld to the extent stated above.
D. Pathik
JUDGE
At Labasa
20 July 1998
Haa0032j.98b
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