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State v Pal [2012] FJHC 1260; HAC059.2012 (7 August 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Appeal No. HAC 059/2012

BETWEEN:

STATE
Appellant

AND:

SAT NARAYAN PAL
Respondent

BEFORE: Mr. Justice P. K. Madigan

COUNSELS: Ms I. Whippy for the State
Mr. N. Sharma (LAC) for Accused

Date of Hearing: 3 August 2012

Date of Judgment: 7 August 2012

SENTENCE

1. On the 3rd August 2012 this accused entered a plea of guilty to the following charge:
   

Statement of Offence

ASSAULT CAUSING ACTUAL BODILY HARM: Contrary to Section 275 of the Crimes Decree 44 of 2009.

Particulars of Offence

SAT NARAYAN PAL on the 9th day of July 2011 at Nabua in the Central Division assaulted one ARUNA NARAYAN thereby occasioning actual bodily harm to the said ARUNA NARAYAN.

He admitted a set of facts put to him and he was as a result found guilty and convicted of the charge.

2. The facts the accused admitted were as follows:
   

"(i) On the evening of the 9th of July 2011, ARUNA NARAYAN (hereinafter the "complainant" was at home with her husband, SAT NARAYAN PAL [hereinafter the "accused"] At about 8.30 pm the accused was drinking alone at home whilst the complainant was watching television in her room.

(ii) At about 9.30 pm the accused person came into her room and began swearing at her before he began assaulting her. The accused person then went to the kitchen and brought a small kitchen knife and put it against her neck. By doing this the complainant received a cut on the right side of her neck.

(iii) The complainant began calling out to her neighbor to help her. It was then that the accused left the complainant alone.

(iv) The neighbor of the complainant, Jitendra Chandra (hereinafter the "neighbor"] upon hearing her cries called the Nabua Police Station for assistance. When the police finally arrived, the neighbor directed them to the home of the complainant and the accused.

(v) PC 4150 Firashad then knocked on the door of the home of the complainant and the accused person. Upon the enquiry of assault by PC 4150 Firashad, the accused person came to the door and stated that there was no assault. The accused was then asked to call the complainant who was crying at the time. Both the complainant and the accused were then taken to the Nabua Police Station.

(vi) The complainant was then taken to Raiwaqa Health Station for medical examination which the Doctor noted bruising on the right side of the face, left upper back/shoulder and upper chest wall with superficial abrasion and a cut on the left side of the neck.

(vii) The accused was then interviewed under police caution where he did not admit to the offence. He was charged with Act with intent to cause Grievous Harm, which has now been reduced to a charge of Assault Causing Actual Bodily Harm".

3. The accused by his counsel has filed detailed and persuasive submissions in mitigation. He is 63 years old and has been married to the victim for 42 years. He worked all his life as a Civil Servant before retiring in 2002. He has never been before the Courts before. His wife has written what appears to be a very genuine letter of forgiveness and reconciliation to the court, speaking of their shame and disgrace as a result of this incident.
   
4. This is obviously an offence of domestic violence. In such an offence reconciliation as a mitigating factor is to be looked at with a high degree of skepticism. The accused's wife's letter however appears to rebut that need for suspicion.
   
5. The accused has diabetes and hypertension as well as recovering from heart surgery in India last year. He needs urgent medical attention and has special dietary requirements.
   
6. The maximum penalty for this offence is five years imprisonment and the tariff was set by Madam Justice Shameem in the case of Tugalala [2008] FJHC 78 where she said:
   

"The tariff for this offence appears to range from an absolute or conditional discharge to 12 months' imprisonment ....That it is the extent of the injury which determines sentence".

7. Of course in cases of domestic violence, the tariff will be enhanced in keeping with the stated aims of the Domestic Violence Decree.
   
8. I am persuaded however that this case stands apart from the normal domestic violence cases seen in this Court. The couple are aged, they have lived together harmoniously for 42 years; the accused has a clear record and has serious health problems. Much to his credit he has pleaded guilty. He has shown remorse throughout these proceedings.
   
9. The medical examination of the wife victim on the day of the assault found an abrasion and a cut on the left side of the neck with bruising around the neck and shoulders.
   
10. An assault of this kind with a cut from a knife would almost invariably attract a custodial sentence it being a bad assault in a domestic violence context. However given the extraordinary circumstances of this case as outlined in paragraph 8, this Court will extend mercy to the accused.
    
11. The accused is sentenced to a term of imprisonment of eight months to be suspended for a period of two years.
    
12. Suspension explained.
    

Paul K. Madigan
JUDGE

At Suva
7 August, 2012