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State v Annamallay [2005] FJHC 100; HAC0004J.2004B (4 May 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC0002 OF 2004LAB

STATE

v.

ANNAMALLAY
s/o Kaniga

Hearing: 2nd May 2005
Sentence: 4th May 2005

Counsel: Mr. D. Goundar for State.
Mr. A. Sen for Accused.

SENTENCING

Annamallay you have pleaded guilty to the offence of act with intent to cause grievous harm. The facts you have agreed to are that you have been in a de-facto relationship with the victim Bijendra Wati for some 16 years. On the 8th of November 2003 the victim came to Labasa market to sell vegetables. She had had an argument with you, you had accused her of having an affair with another man. You followed her to the market carrying a cane knife. After another argument, you struck her several times with the cane knife. You caused injuries to her neck, shoulder and leg. You also severed three of her fingers on the left hand. You then threw the cane knife to the Labasa river and walked away.

The victim was taken to the Labasa Hospital. The report shows that when she was brought in, she had lost a lot of blood and was losing consciousness. She had deep wounds on the neck and her shoulder and amputated fingers. She was not able to stand and was shocked as a result of the blood loss. She needed extensive surgical treatment and hospitalisation for 3 weeks.

You agreed to these facts. You have 10 previous convictions, of which four were for assault charges. Your last conviction is dated February 2002 for which you received a suspended sentence.

In mitigation, counsel called the victim, Bijendra Wati. She gave evidence that she still lived with you and your 4 children but that she was afraid of you. She said she lived under the threat of further assault. She is on Social Welfare benefits to the tune of $85-00 monthly. She said that despite her financial problems she did not want to live with you because she was afraid of you. It was clear from her evidence that she was afraid of further assault, and that she feared for her children’s future and her own life.

In mitigation, counsel said that you have a total of 11 children, 4 of whom live with you. The other children are from a previous relationship. You are a market vendor, and have a history of domestic disputes with your partner. You co-operated with the Police and have pleaded guilty and have expressed remorse.

In State v Dinesh Chand Criminal Appeal AAU0027 of 2000S, the Court of Appeal considered sentencing tariffs for a charge of act with intent to cause grievous harm. That case involved as assault with an ice cream scrapper. The court said:

“Wounding another person with a weapon should, almost always, be visited with immediate imprisonment.”

In R v Shaukat Ali (1967) FLR 87, a suspended sentence for a cane knife assault, was set aside on appeal and a 2 ½ term of imprisonment substituted.

In State v Viliame Cavubati Criminal Appeal HAA0080 of 2001S, I said that the tariff for act with intent cases in Fiji appeared to be between a suspended sentence (where there was no or minimal injury and where the parties have resolved their differences) to 2 ½ years imprisonment (where there was serious injury, a brutal assault and the use of a weapon).

Given the serious nature of this case I would pick a starting point of 2 years imprisonment. Other than the guilty plea and remorse, there are no other mitigating circumstances. I reduce the sentence to 18 months imprisonment. The aggravating circumstances are significant. The injuries on your partner, which are still visible, caused her great pain and trauma. Even more traumatic was the assault on her by a person she relied on and trusted. The use of the cane knife, and her continuing fear of you are all aggravating factors. I increase the sentence to 2 years imprisonment.

Your counsel quite rightly brought to my attention the plight of your children. From your wife’s evidence it appears that she intended to separate from you anyway, so your prison sentence in no way contributes to the plight of children.

The Department of Social Welfare says although the children (aged from 4 years to 15 years) are of good health, they have been exposed to their father’s violent behaviour towards their mother for years. The children depend on Social Welfare benefits and the occasional income from a vegetable store run by their mother at Labasa market. They have expressed a wish to be separated from their father. Clearly they will need greater support from the Department in the future, and I recommend that the Senior Welfare Officer, Northern, continues to concern herself with the children’s welfare until they are able to support themselves. I recommend accordingly. A copy of this sentences is to be sent to her today.

State counsel applies for a Police supervision order under Section 46 of the Penal Code. That section allows the court, where the offender is sentences for the second time for an offence punishable with imprisonment for a term of more than 3 years, to order that he be subject to Police supervision for a period of up to 5 years from the fate of his release from prison.

Counsel for the defence has no objection to such an order, but suggests a length of 1 year. State counsel suggests a 5 years period of supervision. I consider that from the evidence I have heard about spousal abuse from the victim and the Social Welfare Report, a supervision order would be in the best intents of the family.

I therefore order that from date of your release from prison that you be subject to a Police supervision order under Section 46 of the Penal Code for a period of 3 years. Within one week of your release you must report to your nearest Police Station, you must inform the Police of any change of address and whenever required by the Police must personally present yourself to the nearest Police Station.

Failure to obey these orders is a criminal offence for which you may be prosecuted.

Nazhat Shameem
JUDGE

At Labasa
4th May 2005