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State v Prasad [2012] FJMC 338; Criminal Case 191.2010 (3 December 2012)

IN THE MAGISTRATE'S COURT OF FIJI
WESTERN DIVISION AT NADI
[CRIMINAL JURISDICTION]

CRIMINAL CASE NO.191/2010

THE STATE

V

RAMESH PRASAD

Sgt Naidu for prosecution
Ms. Jiuta S (LAC) for Accused.
Date of Sentence: 3.12.2012

SENTENCE

[1] You, RAMESH PRASAD, were charged with one count of Act with Intent to Cause Grievous Harm 224 (a) of the Crimes Decree 2009. The charge was filed on 22 February 2010.

[2] The offence you had committed is an indictable offence under section 255 of the Crimes Decree. However, the High Court by order date 10 December 2010 has extended the jurisdiction of this court to try this offence.

[3] On 6 July 2012 you pleaded guilty to the charge when the charge was read over and explained to you and confirmed that was your own free will.

[4] A summary of facts was submitted by the prosecution, which was put to you and you admitted the facts stated therein. The prosecution tendered a copy of it to court. A copy of the Medical Report of the victim was also tendered.

[5] I have reviewed the facts against the particulars of the offence charged in this case and I am satisfied that it supports the elements of the charge in the information laid against you by the prosecution. Therefore I convict you as charged.

[6] Any person commits an indictable offence if he or she, with intent to maim, disfigure or disable any person or to do some grievous harm to any person, or to resist or prevent the lawful arrest or detention of any person-

(a) Unlawfully wounds or does any grievous harm to any person by any means; or ... [Section 255 (a) of the Crimes Decree 2009].

[7] The facts of the case were that at about 2.30 pm on 20 February 2010 at Wailoaloa beach, Nadi you attacked the complainant, Sharwada Nand Goundar with a hammer causing injuries to her.

[8] On that day the complainant went to Wailoaloa beach with her friend Ashu Lata to have lunch. While they were having their lunch in the vehicle, you hit the victim with a hammer on the head twice. Then the victim got off the vehicle and tried to defend himself, you dropped the hammer and threw a punch on him who was bleeding heavily.

[9] The Medical Report confirms that the victim had deep laceration on upper head (4cm) and deep laceration on central part on upper head (4cm).

[10] Aggravating factors: Pain and shock and mental trauma you caused to the victim aggravated the offending.

[11] Mitigating factors: Your guilty plea, previous good character, remorse and your personal circumstances are your mitigations.

[12] You are 57 years old and living at Lomolomo with your children. You are carpenter by profession but currently working on a sugar cane farm at Lomolomo.

[13] The sentence: The maximum sentence for the offence of act with intent to cause grievous harm is imprisonment for life under section 255 of the Crimes Decree.

[14] It was established in Viliame Cavubati-HAA 80 of 2001 by Shameem J. That the accepted tariff for this offence should range from a suspended sentence through to 2 ½ years. The court said in Amasi Korovata-HAA 11 of 2009 that the range now should extent up to 4 to 5 years.

[15] This is a serious offence. The tariff for the offence is between 6 months to 5 years imprisonment depending on nature of attack-State v Mokubula [2003] FJHC 164.

[16] You committed this offence in 2010. To be fair to you I must consider the tariff that prevailed during that period.

[17] I therefore taking all into my account, in your case I would take 18 months as my starting point. I add 10 months for the above aggravating factors to arrive at an interim total of 28 months. You had taken some 2 years to record your guilty plea hence you are not entitled to full discount of 1/3 for your guilty plea. Nonetheless, I deduct 5 months for your belated guilty plea. I deduct further 5 months to reflect your previous good character and mitigation. In total you are to serve 18 months imprisonment.

[18] I am mindful of the fact that a sentence below 02 years could be suspended in terms of section 26-(2) (b) of the Sentencing and Penalties Decree 2009.

[19] You are 57 years old and a first offender. You have three children to look after. You are remorseful, seeking the court's mercy and promised that you will not re-offend. In the circumstances, I am of the view that a suspended sentence will do justice in your case. I therefore suspend the sentence for a period of three (3) years form today.

[20] You must not re-offend during the operational period of the suspended sentence.

[21] If you re-offend during the operational period of the suspended sentence of imprisonment, you will be liable to be prosecuted under section 28-(1) of the Sentencing and Penalties Decree 2009.

[22] Since I have exercised extended jurisdiction of the High Court, You have thirty (30) days to appeal to Fiji Court of Appeal with leave.

ORDER

[23] I make the following order:

(a) You are hereby sentenced to 18 months imprisonment suspended for three (3) years from today.

...............................................
M H MOHAMED AJMEER
Resident Magistrate

Dated at Nadi this 3rd day of November 2012.