Khan v The State [2005] FJHC 652; HAA0026.2005L (29 June 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0026 OF 2005L

AFZAL KHAN
f/n Shamsher Khan

v

THE STATE

Date of Hearing & Ruling: 29 June 2005

Appellant in Person:
Counsel for the State: Mr. S. Qica

EXTEMPORE RULING

The appellant in this matter was convicted and sentenced at the Nadi Magistrates Court on the 17^th February 2004 with respect to a charge of Indecent Assault and a further charge of Wrongful Confinement.

Particulars of the offences are:

FIRST COUNT

Statement of Offence

INDECENT ASSAULT: Contrary to section 154(1) of the Penal Code, Cap. 17.

Particulars of Offence

AFZAL KHAN s/o Shamsher Khan on the 29^th day of November 2002 at Nadi, in the Western Division, unlawfully and indecently assaulted a girl namely SELAI SINUKULA.

SECOND COUNT

Statement of Offence

WRONGFUL CONFINEMENT: Contrary to section 256 of the Penal Code, Cap. 17.

Particulars of Offence

AFZAL KHAN s/o Shamsher Khan on the 29^th day of November 2002 at Nadi, in the Western Division, wrongfully confined a girl namely SELAI SINUKULA.

The facts as they appear from the record of the Magistrates Court were that the appellant was employed at the complainant’s school. That the complainant got into the appellant’s motor vehicle and that he took her ultimately to Wailoaloa Beach without her permission instead of taking her to her home. That at the beach the appellant kissed her on the lips once and touched her thighs. That he put her dress up and stated that she looked beautiful. At the time of the commission of the offences, the complainant was a class 3 student and 10 years of age.

There is no suggestion in the facts as found by the Learned Magistrate that there was any touching on the genitals or any penetration. The medical report tendered before the Learned Magistrate confirms that there was in fact no apparent penetration or physical injury to the complainant.

The Learned Magistrate sentenced the appellant to a period of 2 years imprisonment with respect to the indecent assault and 12 months imprisonment with respect to the wrongful confinement and then ordered that the sentences be served consecutively, resulting in a total sentence of 3 years imprisonment.

The appellant appeals to this court against the sentences imposed upon him. The tariff for the offence of indecent assault was considered by Madam Justice Shameem in Josateki Seru v The State – Criminal Appeal No. HAA0050 of 2003S. Her Ladyship reiterated what she said to Penioni Ratoto v The State in Criminal Appeal No. HAA0068 of 2002S, the principles there set out are:

“Sentences for indecent assault range from 12 months imprisonment to 4 years. The gravity of the offence will determine the starting point for the sentence. The indecent assault of small children reflects on the gravity of the offence. The nature of the assault, whether it was penetrative, whether gratuitous violence was use, whether weapons or other implements were used and the length of time over which the assaults were perpetrated, all reflect on the gravity of the offence. Mitigating factors might be the previous good character of the accused, honest attempts to effect apology and reparation to the victim, and a prompt plea of guilty, which saves the victim the trauma of giving evidence.

These are the general principles which affect sentencing under section 154 of the Penal Code. Generally, the sentence will fall within the tariff although in particularly serious cases, a five year sentence may be appropriate.

A non-custodial sentence will only be appropriate in cases where the ages of the victim and the accused are similar, and the assault of a non-penetrative and fleeting type. Because of the vast differences in different types of indecent assault, it is difficult to refer to any more specific guideline than these.”

As I have already indicated the facts as found by the Learned Magistrate made it clear that there was indeed no penetration in the assault affected by the appellant nor was there any violence or weapons of any type used. The victim however is a child of 10 years of age and this in itself is an aggravation.

The appellant was entitled to no discount before the Learned Magistrate for entering a plea of guilty as the matter proceeded by way of defended hearing and of course he is not to be the subject of any additional penalty because he chose to defend the matter.

It would appear that the sentence imposed by the Learned Magistrate with respect to the charge of indecent assault of 2 years is within the range and certainly is not manifestly excessive or wrong at law, such as to warrant this court interfering with it. Similarly, the sentence of 12 months imposed with respect with the wrongful confinement is not manifestly excessive or wrong in principle such as with warrant this court interfering with it.

The Learned Magistrate did however order that the sentences be served consecutively.

The facts as found by the Learned Magistrate clearly indicate that both offences were committed at the same time and that it was all part of the one event. In these circumstances, the sentencing guidelines are clear that sentences for offences, which are all part of the one incident, should be served concurrently and accordingly, the Order of the Court will be:

1. Appeal is allowed.

2. Sentence of the Learned Magistrate with respect to the charge of indecent assault of 2 years imprisonment is confirmed.
   
3. Sentence of the Learned Magistrate with respect to wrongful confinement of 12 months is confirmed.
   

4. Both sentences to be served concurrently.

John Connors
JUDGE

At Lautoka
29 June 2005