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State v Lal [2015] FJMC 58; Criminal Case 1576.2011 (28 May 2015)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA

Criminal Case No: - 1576/2011

STATE

v.

RAKESH LAL

Counsel : Ms.Navia for the Prosecution
Mr. O’Driscoll for the accused

Date of Sentence : 28th May 2015

SENTENCE

1. RAKESH LAL, you were charged in this Court for following offences;
   

1st Count

ACT WITH INTENT TO CAUSE GRIEVOUS HARM: contrary to Section 255(a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

RakeshLal on the 26th day of September 2011 at Wilkinson Street, Flagstaff in the Central Division with intent to do some grievous harm to Irene Roselyn unlawfully Irene Roselyn with a chopper.

2nd Count

ASSAULT CAUSING ACTUAL BODILY HARM: contrary to Section 275 of the Crimes Decree no. 44 of 2009.

Particulars of Offence

RakeshLal on the 26th day of September 2011 at Wilkinson Street, Flagstaff in the Central Division assaulted Brendon Christopher thereby occasioning him actual bodily harm.

2. Initially you denied these offences and therefore this was fixed for hearing. After numerous adjournments you through your counsel informed this Court that you wanted to plead guilty . Therefore on 13th March 2015 you took your plea again and pleaded guilty for both offences.
   
3. Summary of Facts admitted by you states the following:
   

The accused person is RakesehLal (the accused) 46 years old, a Taxi driver. The victim are Irene Roselyn (PW-1), 42 years old, a Customer Care Consultant of 6 Wilkinson Street, Flagstaff and Brendon Christopher (PW-2), 19 years old of 6 Wilkison Street, Flagstaff, the accused was in a de-facto relationship with PW1 at the time of the alleged offence.
It is alleged that on 26th September 2011 at about 4.00am, the accused returned to their home at 6 Wilkinson Street, Flagstaff. The accused started swearing at PW1 when she opened the door for him but she ignored it and went back to bed. After about 6.00am, PW1 woke up and saw 3 pairs of jeans missing from their clothes line. She confronted the accused which resulted in an argument between the two. PW1 then told the accused to collect all his belongings and move out of the house. The accused stood up, stated swearing at PW1 and threw their groceries on the floor. PW1 took the accused’s basket of clothes, gave it to him and chased him out of the house. At this point, the accused turned and punched PW1 twice on her head and kicked her back several times.

PW2 came in and tried to stop the accused from attacking PW1. The accused turned and punched PW2 on his left jaw and head. The accused took the chopper from the kitchen, and hit PW1’s head. PW1 felt down to the floor, the accused swung the chopper at PW2; the chopper tipped his chest and t-shirt. The accused tried to strike PW1 again with the chopper when PW2 pushed him away, at this time, their neighbor, Nina Kumari (PW3) was standing at the door witnessing what was happening. PW3 yelled out at PW1 to run out of the house. The accused saw PW3, walked out of the house and drove away in his taxi.

PW1 was medically examined and admitted at the hospital. The medical findings are recorded in her medical examination report.

PW2 was also medically examined and the findings are in his medical report.

4. I am satisfied that your plea was unequivocal and convict you for these offences.
   

The Law and the Tariff

5. The maximum sentence for Act with Intent to Cause Grievous Injuries is life imprisonment.
   
6. In State v Drelinavai [2014] FJHC 309 his Lordship Justice Madigan said :
   

“The maximum penalty for this offence is life imprisonment. Various cases, but in particular MabaMokubula HAA0052of 2003, have held that the tariff for the offence must be from 2 years to 5 years imprisonment, and more in a domestic violence context.

In the Mokubula case, Shameem J. analysed several cases from the High Court and the Court of Appeal and concluded that in an attack by a weapon, the starting point should range between 2 years and 5 years, depending on the weapon used. She added that a suspended sentence in not appropriate.

Although Shameem J. was considering an appeal of sentence for the identical offence under the Penal Code, the new offence under the Crimes Decree has the same maximum penalty and this Court does now confirm that the tariff is a term of immediate imprisonment from 2 to 5 years, and the nature and danger of the weapon used along with the injuries inflicted will be the determinants of where in that range the starting point is taken."

7. The maximum penalty for Assault Occasioning Actual Bodily Harm is 05 years imprisonment.
   
8. In State v Tugalala [2008] FJHC 78; her Ladyship Justice Shameem held that tariff for this offence is from absolute or conditional discharge to 12 months imprisonment.
   
9. In "State vsAnjula Devi" Criminal Case No. 4 of 1998 Lab, it was held that the tariff for " Assault&#160asioning Actualctual Bodily Harm> "> ranges from a suspended sentence where there is a degree of provocatid no weapon used, to 9 months imprisonment or the more serious cases 9.
   

Aggravating Factors

Mitigating Factors

11. There are only limited mitigating factors in this case. At that time you were not a first offender and therefore not entitled for any discount. Your counsel informed that you are remorseful . Only little weight can be given for pleading guilty as this was done after long time from the first time you appeared in this Court.
    
12. I would start with the serious offence in this case which is the 1st count and commence with 03 years as the starting point . For the above mentioned aggravating factors I add 02 years to reach 05 years. For the limited mitigating factors as well as guilty plea deduct 01 year to reach 04 years. As the final adjustment I deduct the period you were in remand ( 01 month) to reach 47 months imprisonment.
    
13. For the 2nd count after considering the aggravating and mitigating factors I sentenced you to 08 months imprisonment and this is to be concurrent with the 1st count.
    
14. RAKESH LAL, you are sentenced to 47 months imprisonment for this charge with a non- parole period of 03 years.
    
15. I also grant a permanent domestic violence restraining orders with standard non molestation conditions in favor of the complainant.
    
16. Since this court is exercising the extended jurisdiction of the High Court case, the parties may appeal against this sentence within 30 days with leave to the Court of Appeal.
    

H. S. P. Somaratne
Resident Magistrate, Suva