IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA 030 OF 2011

BETWEEN:

FELIX PATEL
Appellant

AND:

STATE
Respondent

Appellant in person
Ms. K. Semisi for the State

Date of Hearing : 4th – 21st October, 2011.
Date of Judgment: 27th October, 2011.

JUDGMENT

[1] On the 23rd May 2011 in the Magistrates' Court at Lautoka, the appellant was convicted, on his own plea, to one charge of causing grievous harm contrary to Section 258 of the Crimes Decree 2009. He was sentenced on the 8th August 2011 to a term of 30 months' imprisonment.

[2] The appellant now appeals his sentence on the grounds that:

(i)	The Magistrate applied impermissible aggravating features to increase the sentence;

(ii)	The Magistrate erred in law in failing to give proper weight and discount after reconciliation with the victim;

(iii)	The Magistrate failed to give proper consideration of the plight of the appellants' pregnant wife;

(iv)	The sentence is harsh and excessive.

[3] The facts, which the appellant admitted in the Court below, were that on the 3rd September 2010, at about 2.00pm the appellant and his brother returned home very drunk. An argument developed between the appellant and his father and the brother intervened. The appellant resented this intervention and he picked up an empty beer bottle and hit his brother on the head. The brother fell to the ground and the appellant continued to punch and kick him. The brother was rushed to hospital where he was admitted for treatment. He had cuts to his head and bruises on his forehead.

[4] In mitigation the appellant said:

*he is 28 years old, married with one child;

*he earns $120 per week;

*he has reconciled with his brother;

*he asks for forgiveness and leniency;

*he has to look after his family.

[5] Grievous harm under the Crimes Decree 2009 carries a maximum penalty of 15 years imprisonment. It is a serious offence and the tariff is between 2 years and 6 years (see Motukula) HAA 52/2003. The Magistrate took a starting point of 30 months and added to that 6 months for aggravating features while the Magistrate said to be:

(i)	intoxicated at the time;

(ii)	no provocation by the victim;

(iii)	continued attack after he fell to the floor with injuries;

(iv)	use of a weapon capable of inflicting life threatening injuries;

(v)	high degree of violence;

(vi)	disregard to the risk of serious harm;

(vii)	hospital treatment needed by the victim.

[6] This court believes that the Magistrates list of aggravating features is misconceived. Perfectly appropriate aggravation can be found in the lack of provocation, in the drunkenness and the high degree of violence; however the offence itself subsumes elements of disregard to risk of serious harm, and the use of a dangerous weapon. Hospital treatment is nearly always the result of grievous harm and can not be an aggravating feature peculiar to this case.

[7] The Magistrate deducted 3 months for mitigation which he said to be;

(i). no permanent injury

(ii). no premeditation

(iii). no reconciliation

(iv). remorse and apology

Apart from reconciliation these factors are valid as is the credit of 3 months for the late guilty plea.

[8] This is a domestic violence offence and as such it cannot be reconciled. (Part III Section 3(b) of Domestic Violence Decree). The appellant's ground that the Magistrate did not allow for credit for reconciliation cannot be made out. The victim in this case cannot reconcile with the appellant in order to mitigate this offence. Nor should the Magistrate have allowed it to be a factor in his mitigation "list". Reconciliation plays no part in a domestic violence offence either for or against an accused.

[9] The offence of "bottling" his brother was nasty, dangerous and unprovoked. To smash a beer bottle onto somebodys' head creates a risk of very serious injury. The accused, despite causing his brother to fall to the floor, nevertheless continued in his attack with kicks and punches. For such behavior the court can extend no mercy to the appellant.

[10] Family circumstances will only in very exceptional circumstances allow for a reduction in sentence. I am not told what the "plight of the pregnant wife" is, but it is something the appellant should have taken into consideration before getting drunk and attacking his brother.

[11] Despite the several unsatisfactory aggravating features applied, the final term arrived at in this sentence is both appropriate if not lenient and this court will not interfere with that sentence passed.

[12] The appeal against sentence is dismissed and the term of thirty months' imprisonment is confirmed. It is not a day too long.

P.K. Madigan
JUDGE

At Lautoka
27th October, 2011.