IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA

CRIMINAL CASE: HAA 05 OF 2016

BETWEEN	:	BINESH CHAND

							APPELLANT 
AND	:	THE STATE
							RESPONDENT 
						
Counsel	:	Miss S. Nasedra for the Appellant 
		Mr. J. Niudamu for the Respondent 
			
Date of Hearing	:	8th of April 2016
Date of Judgment	:	5th of May 2016

JUDGMENT
Introduction 
1.		The Appellant filed this appeal against the sentence imposed by the learned 	Magistrate in Lautoka on 24th of September 2015 on the following grounds, inter 	alia;
i)	That the sentence is manifestly harsh and excessive, 
ii)	That the learned sentencing Magistrate erred in law in giving a non-parole period which is in breach of Section 18(4) of the Sentencing and Penalties Decree 2009, 
2.		The learned counsel for the Appellant and the Respondent consented to conduct 	the hearing of this appeal by way of written submissions. Hence, I invited 	them 	to file their respective written submissions, which they filed accordingly. 
Background 
3.		The Appellant was charged in the Magistrate’s court for one count of Assault 	Causing Actual Bodily Harm, contrary to Section 275 of the Crimes Decree 	and one count of Breach of Bail Condition, contrary to Section 26(1) of the Bail 	( Amendment) Decree No 	28 of 2012. The Appellant initially had pleaded not 	guilty for these two counts. Hence, the matter proceeded to hearing. The 	prosecution called their witnesses to prove the 	charges against the Appellant. At 	the conclusion of the prosecution’s case, the Appellant informed the court 	that 	he wished to change his plea. The Appellant then pleaded guilty for these two 	counts. Having satisfied that the plea of guilty by the Appellant was 	voluntary and the Appellant had properly comprehended the consequence of his 	plea, the learned Magistrate convicted him for these two counts. The learned 	Magistrate then sentenced the Appellant for a period of seventeen (17) 	months of imprisonment for the offence of Assault Casting Actual Bodily Harm 	and six (6) months of imprisonment for 	the offence of Breach of Bail Condition. 	Both sentences are to be served concurrently. 	The learned Magistrate has 	further ordered that the Appellant is not eligible for parole for a period of 	twelve 	(12) months. The Appellant now appeals against the said sentence of the 	learned Magistrate. 

Submissions of the Parties 
4.		The learned counsel for the Appellant submitted in her written submissions that 	the learned Magistrate has added twelve months for the aggravating factors in 	the sentencing, which is harsh and excessive. She further submitted that the 	learned Magistrate has erred in law by selecting twelve months of non-parole 	period, which is in contravention with Section 18 (4) of the Sentencing and 	Penalties Decree. 
5.		The learned counsel for the Respondent in his written submission conceded that 	the learned Magistrate has relied on wrong principles of sentencing. He 	submitted that the learned Magistrate has considered the same facts for selecting 	the starting point and then for the aggravating facts. The learned counsel for the 	Respondent further conceded that the learned Magistrate has erroneously 	ordered twelve month of non-parole period, which is in contravention with 	Section 18 (4) of the Sentencing and Penalties Decree. 
The Law and Analyses 
6.		Having briefly outlined the factual and procedural background of this appeal, I 	now turn onto the first ground of appeal, that is the sentence imposed by the 	learned Magistrate is manifestly harsh and excessive.  
7.		The Fiji Court of Appeal in Kim Nam Bae v The State [1999] FJCA 21; AAU 0015 	of 1998  held that; 
‘It is well established law that before this court can disturb the sentence, the appellant must demonstrate that the Court below fell into error in exercising its sentencing discretion. If the trial judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some of the relevant considerations, then the appellate court may impose a different sentence.’
8.		The Appellant and the Respondent did not dispute the applicable tariff for the 	offence of Assault Causing Actual Bodily Harm. The learned Magistrate has 	selected twelve months as the starting point, which is actually within the 	accepted tariff limit for this offence. The learned Magistrate has then added 	another twelve months for the aggravating factors. He had then reduced 2 	months for the mitigation factors. Further one month was rescued for the plea of 	guilty.	He has reduced 4 months for the time the Appellant had spent in remand 	custody prior to the sentencing. The final sentence is seventeen months. 
9.		The learned Magistrate in paragraph twelve of his sentence has stated that; 
“Having consideration over the surrounding circumstances of the offending, the nature and seriousness of the injuries caused and facts highlighted under Section 4(3) of the Sentencing and Penalties Decree 2009, I select a starting point at the higher end of the tariff band for this offence. Thus I commence your sentence at 12 months imprisonment” 
10.	The learned Magistrate has not specifically explained in the sentence what he has 	actually considered as the surrounding circumstances of the offending. He has 	then considered the following factors as aggravating circumstances of this 	offence, inter alia; 
i)	Blatant breach of trust of the complainant which she reposed on you as her de-facto husband,
ii)	Assaulting the complainant in violation of a court order, 
iii)	Unprovoked attack on complainant, 
iv)	Complainant assaulted in front of children at a primary school, 
11.	The Fiji Court of Appeal in Naikelekelevesi v State [2008] FJCA 11; 	AAU0061.2007 (27 June 2008) has succinctly discussed the applicable and 	structured approach in sentencing, where their lordships held that; 
“In Fiji sentencing now involves a more structured approach incorporating a two tier process. The first involves the articulation of a starting point based on guideline appellate judgments, the aggravating features of the offence [not the offender]; the seriousness of the penalty as set out in the act of parliament and relevant community considerations. The second involves the application of the aggravating features of the offender which will increase the starting point, then balancing the mitigating factors which will decrease the sentence, leading to a sentence end point. Where there is a guilty plea, this should be discounted for separately from the mitigating factor in a case.
In determining the starting point for a sentence the sentencing court must consider the nature and characteristic of the criminal enterprise that has been proven before it following a trial or as in this instance the facts that were outlined to the appellant after his guilty was entered and he was convicted, to which he voluntarily admitted. In doing this the court is taking cognizance of the aggravating features of the offence”. 
12.	The learned Magistrate has correctly adopted the offence of Assault Causing 	Actual Bodily Harm as the base offence in sentencing. It is a correct and 	appropriate approach, which could avoid punishing the accused twice on same 	ground. 
13.	Having correctly adopted the appropriate approach with base offence, the 	learned Magistrate has fallen into an error by considering the fact that the 	Appellant assaulted the complainant in violation of court order as an 	aggravating circumstances of this offence. Apparently, it is the main factual 	element of the offence of Breach of Bail Condition. Accordingly, it is my opinion 	that the learned Magistrate has erroneously considered the violation of court 	order as an aggravating factor for the offence of Assault Causing Actual Bodily 	Harm. 
14.	It appears that the issues of provocation and the place of assault are surrounding 	circumstances of the offending, which the learned Magistrate has considered in 	selecting the starting point. Thus, he is not allowed in law to consider the same 	grounds in order to increase the sentence. Moreover, there is no evidence 	presented in summary of facts whether any form of provocation excited or not. 	Hence, the finding of learned Magistrate on the issue that this assault was 	unprovoked is not founded on any evidence. 
15.	In view of the reasons discussed above, it is my opinion that the learned 	Magistrate has acted upon wrong principles and has considered wrong and 	irrelevant factors in reaching the final sentence of seventeen months for the 	offence of Assault Causing Actual Bodily Harm. 
16.	I now draw my attention to the second ground of the appeal that is the learned 	Magistrate erred in law in giving a non-parole period of twelve months in breach 	of Section 18 (4) of the Sentencing and Penalties Decree. 
17.	Section 18 (4) of the Sentencing and Penalties Decree states that; 
“Any non-parole period fixed under this section must be at least 6 months less than the term of the sentence”. 
18.	In view of Section 18 (4) of the Sentencing and Penalties Decree, the sentencing 	court is required to fix a period of less than at least six months than the term of 	sentence when imposing a non-parole period. In this instant matter, the learned 	Magistrate has fixed twelve months of non-parole period for the seventeen 	months of imprisonment. The non-parole period fixed by the learned Magistrate 	is not less than 6 months of the term of the sentence. Hence, I find that the non-	parole period fixed by the learned Magistrate in his sentence is in breach of the 	requirement as stipulated under Section 18 (4) of the Sentencing and Penalties 	Decree. 
19.	Having considered the above discussed reasons, I find there is a reason for me to 	intervene in to the sentence of the learned Magistrate pursuant to Section 256 (3) 		of the Criminal Procedure Decree. I accordingly quash the sentence of the 	learned Magistrate and consider an appropriate sentence in order to reflect the 	gravity and the appropriate culpability of the Appellant in this offence. 
20.	I now turn onto consider the level of harm and culpability of this offence in order 	to determine the applicable starting point. The medical report of the victim 	reveals that the victim had sustained scratch marks on both left and right arms 	and also on the left side of the face and legs. I do not find the physical injuries 	sustained by the victim were serious in nature. There is no any evidence 	presented before the court to consider any psychological trauma sustained by the 	victim. 
21.	The summary of facts reveals that the victim is the de-facto wife of the Appellant. 	The Appellant came and met the victim while she was dropping her three 	children at their school. They had an argument, then she went inside the 	classroom. The Appellant followed her and assaulted in the manner as described 	in the summery of facts. 
22.	He has slapped her three time and had not used any weapons. He had pulled her 	hair and dragged her when she fell on the floor. There is no evidence of 	provocation and premeditation. Hence, I find the level of harm and the level of 	culpability in this offending is not high. Accordingly, the starting point should be 	from the middle range of the tariff. I accordingly select 8 months as the starting 	point. 
23.	The Appellant has committed this crime at the primary school and in front of 	primary school children in the class room. I consider this as a serious aggravating 	factor against the Appellant. Moreover, I find the appellant had breached the 	trust reposed in him by the victim as her de-facto husband. In view of these 	aggravating factors, I increase 6 months and reach to an interim imprisonment of 	14 months. 
24.	I concur with the finding of the learned Magistrate in respect of the mitigatory 	factors. I reduce 2 months for it. I further reduce one month for the plea of guilty 	and further 4 months for the time the Appellant spent in remand custody prior to 	the sentencing. The final sentence is now seven months of imprisonment. 
25.	I do not find any reason to intervene with the sentence imposed by the learned 	Magistrate in respect of the second count of Breach of Bail Condition. 
26.	I further concur with the reasoning given by the learned Magistrate for imposing 	a custodial sentence.  Hence, I do not suspend the sentence of seven (7) month 	imprisonment. 
27.	I do not wish to change the Permanent Domestic Violence Restraining Order 	issued by the learned Magistrate in his sentence. 
28.	I accordingly sentence the Appellant for a period of seven (7) months 	imprisonment for the offence of Assault Causing Actual Bodily Harm, contrary 	to Section 275 of the Crimes Decree and six (6) months of imprisonment for the 	offence of Breach of Bail Condition, contrary to Section 26(1) of the Bail 	(Amendment) Decree. Both sentences are to be served concurrently and effective 	from the 24th of September 2015. 
29.	
Thirty (30) days to appeal to the Fiji Court of Appeal. 

							R. D. R. Thushara Rajasinghe
								     Judge
At Lautoka
5th of May 2016

Solicitors	:	Office of the Director of Public Prosecutions 
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