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State v Kumar [2011] FJHC 379; HAC039.2011 (12 July 2011)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

Criminal Case No: HAC 039 of 2011

BETWEEN:

THE STATE

AND:

SANT KUMAR

Counsel: Mr. M. Kaisamy for State
Mr. I. Khan for Accused

Date of Hearing: 11 July 2011
Date of Sentence: 12 July 2011

SENTENCE

[1] Sant Kumar, you freely and voluntarily pleaded guilty to act with intent to cause grievous harm after the charge was reduced from attempted murder and to escaping from lawful custody. I convict you of both charges.

[2] The facts are that you were in a de facto relationship with the victim. On 10 August 2010, the victim left your home in Lautoka and returned to her mother's home in Bulileka, Labasa after an argument. The following day, you followed her to Labasa with the intention to persuade her to return home with you. On the morning of 13 August 2010, you had an argument with the victim when she refused to return with you to Lautoka. You grabbed a kitchen knife and stabbed the victim once just below her left shoulder. She screamed. You ran away.

[3] The victim was taken to the hospital by her family. She sustained a wound on her left shoulder. The wound was 1.5 cm in length and less than 2 cm in depth. The wound was not life threatening but the victim was kept under observation in the hospital for five days.

[4] On 14 August 2010, you attempted to commit a suicide by hanging yourself at a schoolbus shelter. You were rescued by some members of the public, who alerted the police afterwards. The police transported you to the hospital. You sustained abrasions and swells around your neck. After medical examination, you were kept in the hospital under police guard.

[5] On 15 August 2010, you sneaked out of the hospital without the police guard's knowledge. You were apprehended on the same day at Bulileka and returned to the hospital. You remained in the hospital until 19 August 2010 when the police took you for questioning. In your interview, you admitted stabbing the victim.

[6] On 21 August 2010, you were charged with stabbing the victim with a knife. You made a statement to the police that you felt sorry for the victim after stabbing her. You thought she would die and that is why you tried to commit a suicide.

[7] You are 42 years old and married with children. You are a bus driver by profession and you are the sole breadwinner for your family. Your three children are attending school.

[8] The victim's mother gave evidence of the financial assistance you gave to her family before the stabbing incident. In mitigation, your counsel informs the court that the victim visited you several times while you were in custody on remand. You say that the victim has forgiven you. However, there is no confirmation of this from the victim.

[9] A more compelling mitigating factor in your favour is that you are a first time offender. In the last 42 years you have lived a blameless life.

[10] The offence of act with intent to cause grievous harm is punishable by life imprisonment. The maximum penalty for escaping from lawful custody is two years imprisonment. Both offences arise from the same facts, and therefore deserving concurrent sentences.

[11] Your counsel has referred to numerous cases, to persuade the court to impose a suspended sentence. I bear in mind that sentences are imposed based on the facts of each case.

[12] The most helpful guideline case for the offence of intent to cause grievous harm is the decision of Shameem J in State v Mokubula [2003] FJHC 164. In that case, Shameem J held that the tariff for act with intent to cause grievous harm is between 6 months to 5 years imprisonment, and that in case of an attack by a weapon, the starting point should range from 2 years imprisonment to 5 years, depending on the nature of the weapon.

[13] By assaulting your de facto partner, you clearly breached her trust. The fact that the stabbing arose from a domestic dispute aggravates the offence. Your subsequent attempt to commit a suicide demonstrates to me that you have fatal obsession towards the victim.

[14] The mitigating factors are your guilty pleas, confession to the police, remorse, previous good character and family circumstances.

[15] For the offence of act with intent to cause grievous harm, I pick 2 years imprisonment as my starting point. I increase the sentence to 3 years to reflect the aggravating factors. I reduce the sentence to 12 months to reflect the mitigating factors and the remand period of 37 days.

[16] I sentence you to 12 months imprisonment for act with intent to cause grievous harm and to 1 month imprisonment for escaping from lawful custody, to be served concurrently.

[17] I now consider whether to suspend your sentence. Suspension of sentence is generally reserved for a first time and a young offender. Although you are a first time offender, you are not a young offender.

[18] The offences arose from a domestic relationship where the vulnerable partner was stabbed with a knife. The court has a duty to denounce your conduct and to deter you and others from committing this kind of offences. Domestic arguments are inevitable in relationships. Men must restrain themselves from using violence on their partners during domestic arguments. Despite your previous good character and other compelling mitigating factors, I give priority to the principle of deterrence and have decided not to suspend your terms of imprisonment.

[19] Since you are now convicted of a domestic violence offence, I am bound by the Domestic Violence Decree to issue a restraining order against you to protect the victim from any form of violence in future by you. I order you to stay away from the victim in future and you must not commit any form of assault or threat on her in future. The victim may apply to the High Court to have this restraining order discharged or varied.

Daniel Goundar
JUDGE

At Labasa
12 July 2011

Solicitors:
Office of the Director of Public Prosecutions, Labasa for State
Messrs I. Khan & Associates, Lautoka for Accused