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State v Khelawan [2016] FJMC 41; Criminal Case 165.2015 (1 April 2016)

IN THE JURISDICTION OF THE MAGISTRATES COURT AT SIGATOKA
IN THE WESTERN DIVISION
Criminal case No. 165/2015

THE STATE

V

RAM KHELAWAN

Before : Resident Magistrate, TomasiBainivalu
For the Prosecution: A/Sgt 2575 Shamim Hassan
For the Accused: Mr Sharma of LAC
Date of Sentence: 01st April, 2016

SENTENCE

You “Ram Khelawan” are here today, to be sentenced on admission of guilty on your own accord for the offence of Assault Occasioning Actual Bodily Harm contrary to section 275 of the Crimes Decree No. 44 of 2009.

According to the summary of facts tendered by the Prosecution which you admitted in open court, were as follows:-

“On the 7th day of February 2015 at about 2100 hours at Kabisi, Sigatoka one Prasil Pratik Kumar (A-1) 28 years businessman of Waiyavi Stage 1 Lautoka was assaulted by one Ram Khelawan (Accused) 55 years casual worker of Kabisi, Sigatoka.

On the abovementioned time and place (A-1) came to celebrate her daughter’s birthday at accused residence’s which is (A-1)’s father in law. (A-1)’s daughter was playing when he heard his wife namely Pritika swore at her daughter. (A-1) then warned his wife not to do that again. Accused then intervened leading him punching (A-1). (A-1) got injured as per medical report.

Later accused was arrested interview under caution and charged for the offence of assault causing actual bodily harm”

According to the section 275 of the Crime Decree of 2009, the offence of Assault Occasioning Actual Bodily Harm is the summary offence and maximum sentence could be imposed against you for such offence is 5 years imprisonment. The tariff for the offence of Assault Occasioning Actual Bodily Harm range from a suspended sentence where there is a degree of provocation and no weapon used to 9 months imprisonment for the more serious cases of assault. (Gounder J in JonetaniSereka v The State 2008,FJHC 88, HAA027,2008), (State v Anjula Devi, Crim Case No 04 of 1998).

Accordingly, I convicted you as charged and I select 6 months’ imprisonment as a starting point.

Aggravating Factors

According to the information revealed by the summary of facts placed before this court, that as a result of the assaulted, the victim sustained injuries as per medical report tendered in court; i.e. “bruises(1x1cm), (x2) on left arm medial surface, tender over left arm and tender nasal area”.

Considering the aggravating factor, I increase further 4 months of imprisonment from the starting point. Now, your sentence stands for 10 months imprisonment.

You are a first offender, therefore you’re entitle to a 1/3 discount; and you pleaded guilty at the early possible instance thus saving the court and prosecution time and expenses. I deduct 2 months from your early guilty plea; and 2 months deducted for the being a first offender, thus living the total sentence to 6 months imprisonment.

Mitigating Factors

In mitigating your LAC Counsel told the court as follows:-

54 years old;
Married and retired farmer and only doing farming now for a subsistence purpose;
Sole bread winner of the family;
Victim is son in law and that day the victim assaulted the accused daughter being victims wife; in front of the accused and you got upset and assaulted the victim;
Receiving Social Welfare Assistance allowance at $50.00 per month;
Recently, like 3 weeks ago, being attested with mile-stroke and accused was limping when came to court today, still recovering slowly;

My side comments:-[no medical evidence/report, tendered to confirm the evidence given by LAC counsel-with due respect, from the bar table in court, it is not a recommended practice, I would say...]strong evidence are the once strongly supported with concrete and tangible documentary/physical evidence...that’s what this court need and officers of the court are the ones’ to be always on the front line to assist the court in anyway and every way, they can in Maintaining & Sustaining the Equal Standard of our local Justice System...”

[emphasis originally mine]

And lastly seek forgiveness of the court.

I further deduct another 3 months for the mitigating factors above, which now leaves your total sentence to three (3) months’ imprisonment.

After considering all the above, your personal circumstances, being first and ranged age offender, mature enough to control your temper, but it had overruled you on the day in question.

And the fact that accused had shown remorse to court in pleading guilty at the earliest possible time. I hereby decide to suspend the three (3) months imprisonment for a period of two (2) years from to date.

The consequence of reoffending during the operational period of suspension is explained to the accused in court and he understood.

I further invoked a Domestic Violence Restraining Order with the SNMC against the accused with effect from todate.

28 days to appeal.

On this 01st day of April 2016.

Tomasi Bainivalu (Mr)
Resident Magistrate,
SIGATOKA.