Khan v State [2002] FJHC 239; HAM0049D.2002S (10 December 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

MISCELLANEOUS ACTION NO: HAM 049 OF 2002S

Between:

ARIF AFZAL KHAN
Applicant

And:

THE STATE
Respondent

Hearing: 10th December 2002
Ruling: 10th December 2002

Counsel: Mr E. Veretawatini for Applicant
Mr N. Nand for Respondent

RULING

The Applicant, who has been remanded in custody since the 5th of December 2002, pending sentence, now applies for bail. He has pleaded guilty to the following charge:

Statement of Offence

ASSAULT OCCASIONING ACTUAL BODILY HARM: Contrary to Section 245 of the Penal Code, Act 17.

Particulars of Offence

AREEF AFZAL KHAN s/o Ali Khan, on the 22nd day of January, 2002 at Nasinu in the Central Division, assaulted one Shazia Mehnaaz Khan d/o Mohammed Ibraim thereby occasioning her actual bodily harm.

The affidavit of Shazia Mehnaz Khan sworn on the 6th of December 2002 states that she is the victim in the case, and that she had informed the learned Magistrate that she had reconciled with the Applicant (her husband). The affidavit further states that she is 6 months pregnant, that the Applicant is the sole bread winner in her family and that she is suffering from mental fatigue as a result of his absence.

Because the affidavit material was uninformative about the facts of the case, I called for the court record. The contents show that the Applicant pleaded guilty to the charge on first call. The facts of the case were that the victim had gone to the shop with her sister-in-law to buy bread. She met her husband there. He told her to pack her clothes and go home. She was packing her clothes when he kicked the bedroom door, damaging it. He came inside the bedroom and punched her on the face. She escaped and went into the kitchen. He followed and poured kerosene on her. He was about to set fire to her body when the victim’s sister-in-law saved her. The Applicant then pushed the victim down. She fell. He then dragged her through the kitchen and kicked her around the hips. She then changed her clothes and reported the matter at the Valelevu Police Station.

She was examined by a doctor, who found bruises around the upper arm and hip area as well as redness around the abdomen. The victim also complained of body pain. She was then 3 months pregnant.

These facts were admitted by the Applicant. The learned Magistrate then heard mitigation. The Applicant is 20 years old, is married and is employed. He has reconciled with the victim. The learned Magistrate adjourned to 19th December 2002 for sentencing and remanded the Applicant in custody pending sentence.

Counsel for the Applicant concedes that this was a serious case of assault but said that the parties had reconciled and that the case was not as serious as an assault on a stranger. He further said that the 2 week adjournment for sentence, and the order for remand in custody, was tantamount to a pre-sentence sentence.

Counsel for the State said that under section 163 of the Criminal Procedure Code, the Magistrate had a discretion to promote reconciliation and that because this was a case of aggravated assault, reconciliation was not indicated. He conceded that it was unusual to adjourn for 14 days for sentence on a charge of assault occasioning actual bodily harm, but said that as far as sentence was concerned, the case should be treated in the same way as assaults on members of the community.

This is a bail application. The main principle, pending trial, is the likelihood of the accused appearing for trial. In this case the accused pleaded guilty and admitted facts which could in the normal course of events, lead to a custodial sentence. If this was the reason for remanding him pending sentence, then the decision would be unexceptionable if sentence were delivered shortly after conviction. I cannot accept counsel’s submission that domestic violence is in a different, less serious category, to other types of assault, or that reconciliation between husband and wife would invariably lead to a non-custodial sentence. To accept these submissions, would be to accept that men are given some inherent right to beat their wives, and that all will be forgiven and forgotten if the victim has reconciled with her abuser. There is no legal basis for such a proposition.

A husband who beats his wife must accept the same punishment that he would get if he assaulted any member of society. Further, whilst reconciliation is always relevant for the purpose of sentencing, judges and magistrates must always be aware of the considerable financial, social and emotional pressure on a woman to reconcile with her husband despite the violence. In these circumstances, it is the court’s duty to deliver a sentence which fits the crime and the offender, after taking into account not only the reconciliation, but also the way in which reconciliation has been achieved, as a matter of social reality. Whilst such reality is a factor to be considered and weighed, it does not remove the responsibility of the court to punish for what is often a very serious act of violence towards the powerless and vulnerable.

It is for this reason, that the power to promote reconciliation is a discretionary matter under section 163 of the Criminal Procedure Code. The discretion must be exercised having considered the circumstances of the case, and in particular, the seriousness of the assault. If the proceedings have not been stayed or terminated, reconciliation (and the nature of it) is a matter which may be taken into account for the purpose of sentence.

In this case, the learned Magistrate clearly considered the assault to be of an aggravated type and therefore did not stay or terminate proceedings. He acted within his discretion in making this decision.

As for the order for remand, it is not wrong in principle to remand a person in custody pending sentence when a custodial sentence is contemplated, and the remand is for the short period before sentence is delivered.

As I have said, a custodial sentence, on the facts of this case may be contemplated. However, I consider a remand period of 14 days pending sentence to be unjustified in this case. The State did not request such remand. It was not suggested that the Applicant would abscond. He has a fixed address and is employed. The learned Magistrate gave no reason for adjourning for so long for sentence, and there was no opportunity for the Applicant to ask for bail, or for the prosecution to oppose it. The order for remand is therefore wrong in principle.

This case highlights the pitfalls in adjourning for an unduly long period for sentence. Sentences should normally be delivered on the same day as conviction is entered, or if the court requires better information for sentencing such as social welfare reports, no longer than a few days. Further, any order for remand in custody must be made after both prosecution and defence has been given an opportunity to request remand or ask for bail. A reasoned decision must then be made, so that the accused knows why he/she is remanded in custody.

In this case, no apparent reason exists for the remand in custody. The Applicant has the right to bail in the circumstances.

I therefore order that he be bailed on his own recognizance of $100, to appear in court before the learned Magistrate on the 19th of December 2002 for sentence.

Nazhat Shameem
JUDGE

At Suva
10th December 2002