Habil v The State [1999] FJHC 66; Haa0019d.1999b (19 July 1999)

Fiji Islands - Habil v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT LABASA

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 0019 OF 1999

BETWEEN:

:

MOHAMMED HABIL
s/o Umar Ali
Appellant

AND:

THE STATE
Respondent

Mr. A. or the Appellppellant Ms. A. Driu for the Respondent

REASONS FOR DECISION

On the 24th of June 1999 this appeal against sentence was dismissed for reasons which I now provide.

The appellant was convicted by the Labasa Magistrate Court on 14th January 1999 after he pleaded 'guilty' to an offence of Common Assault and was sentenced to pay a fine of $60 and bound over in the sum of $900 to keep the peace for a period of 1 year.

The incident which gave rise to the charge may be briefly described as follows:

On the day of the incident 29th July 1997, the appellant met the complainant returning to her home and over, an argument about the cutting of a rope, had pushed the complainant causing slight injuries to her.

The appellant now appeals against the sentence imposed on the ground that it 'was harsh and unconscionable'. An earlier appeal against conviction was discontinued by counsel on perusing the trial magistrate's copy record.

In arguing the appeal counsel highlighted the appellant's previous good record, his guilty plea and the absence of any visible injuries on the complainant as a result of the assault and counsel submitted that the 'appellant should have been discharged' rather than be sentenced as he was since it might be taken as a 'win' by the complainant's side in what has been an on-going family dispute over estate matters.

Conversely in my view, the discharge of the appellant would have sent an opposite signal to his side and, I might add, a wholly inappropriate one, namely, that a stronger male may assault a weaker female with impunity or that assaults are an acceptable way of resolving arguments. Clearly that would be quite wrong and the trial magistrate was perfectly correct in his observation that '... violence of whatever nature will not be tolerated'.

There is only one inexplicable matter that causes concern and that is the inordinate delay on the police's part in not laying charges until the 22nd July 1998 almost a year after the incident occurred. State Counsel was unable to enlighten the court other than to say that the relevant police docket was not compiled until 5th May 1998 despite enquiries being completed much earlier.

The delay in charging an offender has been noted by the learned author of Cross on the 'Principles of Sentencing' as a consideration which has moved the Court on occasion to reduce an otherwise wholly appropriate sentence.

In this instance however bearing in mind the rather trivial nature of the offence it cannot be said that the appellant has suffered unnecessarily from having the matter hanging over his head. Certainly no such suggestion was made to the Court.

The appeal was accordingly dismissed.

D.V. Fatiaki
JUDGE

At Labasa,
19th July, 1999.

Haa0019d.99b