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State v Chand - Sentence [2012] FJMC 104; Criminal Case 545.2012 (29 May 2012)

IN THE RESIDENT MAGISTRATE'S COURT OF FIJI ISLANDS
AT SUVA

Criminal Case No: 545/12

STATE

V

LAL O'NEIL CHAND

Prosecution : WPC Fisher.
Accused : In Person.

SENTENCE

1. Lal O'Neil was brought before this Court for a charge of Criminal Intimidation that was filed under section 375(1)(a)(1)(4) of the Crimes Decree. The charge was filed on the 20th of April 2012.
   
2. It is alleged that on the 03rd of December 2011 Nabua in the Central Division without lawful excuse threatened by using a kitchen knife with intent to cause alarm to Rayhill Amen Chand.
   
3. The accused waived his right to represent himself by a legal counsel. Accused entered a 'Plea of Guilt' by his own free will.
   
4. Prosecution outlined the case against the accused with their summery of facts. Victim Rayhill Chand is the son of the accused. He was 10 year old at the time of the incident. On 03.12.2011 at around 7 pm the accused came home which was situated at Nanuku settlement in Vatuwaqa. The accused was under the influence of liquor.
   
5. It appears that when the time he came home only the victim and victim's grandmother were at home. The accused entered the kitchen and armed with a kitchen knife.
   
6. He pointed the kitchen knife at his 10 year old son's neck and asked him to tell his mom (the wife of the accused) to return home.
   
7. However grandmother managed to grab the knife from the accused. The accused was unrelenting. He took the victim to lockup in the toilet.
   
8. Later he was released and the matter was reported to Nabua police station. The accused was arrested and interviewed under caution where he admitted the offence.
   
9. The summarized facts were admitted by the accused. The Court convicted the accused for 'Criminal Intimidation'.
   
10. Section 375 (1) carries a maximum sentence of 5 years imprisonment. If the threat was to cause grievous harm, death, destruction to any property by fire or to impute chastity to a woman, the imprisonment is 10 years.
    
11. In State v Baleinabodua [2012] FJHC 981; HAC145.2010 (21 March 2012) Hon; Justice Temo held,
    

'In my view, an acceptable tariff would be a sentence between 12 months and 4 years imprisonment. Serious cases should be given the sentence in the upper range, while less serious cases should be given sentences at the lower end of the scale'.

12. The main ground of the accused in his mitigation is that he has reconciled with his son and wife, and that this is a family matter which was not the concern of the courts. His wife was present in Court to confirm reconciliation and said that this had occurred as a dispute between her and the accused. And that she too is partly liable to the incident.
    
13. Even it is a family dispute the view of this Court is 'Criminal Intimidation' is not a reconcilable offence. Section 154(1) limits reconciliation in to offences of common assault, assault occasioning actual bodily harm, criminal trespass and damaging property. Sub section (6) states that even for the earlier stated offences it cannot be applied if the offences are under the Domestic Violence Decree 2009.
    
14. The reconciliation cannot be totally considered in family disputes due to the weaker bargaining positions of the family members such as women and children. Hence I note that this is not a matter to discontinue proceedings on the reconciliation that said to have entered between the accused and his wife.
    
15. Parents are bound by the duties and responsibilities to provide due care and protection to their children until they turn in to eighteen. This will not at any time give authority or a licence to abuse or torture them in any form.
    
16. I do not want to revisit the agony and mental trauma of the ten year old victim, when his father pointed a kitchen knife on his neck and asked to call his mother back home. Age and the relationship of the victim coupled with the weapon used to intimidate indeed aggravate the offence.
    
17. The accused stated that he is the sole breadwinner for the family. He employed as a chef and his wife is expecting another child. He apologized to Court for the offence.
    
18. I will only consider his early plea, fact that he is a first offender and above personal circumstances as valid grounds of mitigation.
    
19. It was held in Wise v State [2008] FJHC 316 that reconciliation cannot be considered as a mitigating factor in a case of 'Criminal Intimidation'. Her ladyship Justice Shameem went on to state,
    

'The Appellant submitted that this is a family dispute and that this was a mitigating factor. I do not agree. The fact that an assault, or threats of assault occur within a family home, does not make it any less a criminal offence. To suggest otherwise would be to give those who hold positions of power and authority within the home, virtual impunity from prosecution and punishment. A criminal offence is an offence whether it is committed on the street on strangers, or in the home on one's own family members. Indeed it may be said that offences committed on family members should be considered very seriously by the courts because of the gross betrayal of trust perpetrated on those family members'.

20. I take 12 months imprisonment as starting point for the offence. It is increased by another 14 months for the aggravating factors. Now the sentence is 26 months.
    
21. Accused should be given the total credit for early plea. Hence 8 months is deducted. Another 5 months concession is given for his personal circumstances. Final sentence of the accused now stands at 13 months imprisonment.
    
22. Sentencing and Penalties Decree 2009 grants discretion to suspend the total term or part of it, which is below 2 years imprisonment.
    
23. "Suspended sentence" can be considersidered as an alternative for imprisonment.
    

In O'Keefe 1969 1 AER 426 it was held;

"The court must go through the process of eliminating other possible courses such as absolute discharge, conditional discharge, probation order, fines and then say to itself: this is a case for imprisonment, and the final question, it being a case for imprisonment, is immediate imprisonment required, or can I give a suspended sentence?"

24. I note that it is the duty of the Court to deter offenders and other persons of the community from committing these types of offences and to signify that the Court and the community denounce the commission of such offences.
    
25. Having considered the guidelines of O'Keefe I am of the view that the accused should be imposed with an immediate imprisonment for the offence he committed.
    
26. Section 26(1) of the Sentencing and Penalties Decree 2009 provides legitimate ground to partly suspend any sentence below two years. The fact that the accused is a first offender facilitates the Court to act under this provision of the Decree.
    
27. Hence Lal O'Neil Chand, you are sentenced today to 13 months imprisonment. 12 months of the sentence is suspended for two years. As a result you will serve one month of your imprisonment in the prison.
    
28. After your release, if you commit any offence within the period of suspension (2 years) and if found guilty by the Court, you will be charged and prosecuted pursuant to section 28 of the Sentencing and Penalties Decree 2009.
    
29. Further a domestic violence restraining order is in place against you with non molestation condition as per section 24(1)(b)(1) of the Domestic Violence Decree 2009 to ensure wellbeing of the victim.
    
30. You have 28 days to appeal.
    

Pronounced in open Court,

YOHAN LIYANAGE
Resident Magistrate

29th May 2012