State v Khan [2008] FJHC 270; HAC067.2008S (3 November 2008)

IN THE HIGH COURT OF THE FIJI ISLANDS
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 067 OF 2008S

THE STATE

V.

ZIHARI RAFIQ KHAN
[d/o MOHAMMED KHAN]

Ms H Tabete for the State
Mr Avinesh Reddy for the Accused

Date of Sentence: 3 November 2008.

SENTENCE

1 Zihari Rafiq Khan d/o Mohammed Khan this is your sentence. You were charged with one count of Act with Intent to cause Grievous Bodily harm, contrary to section 244(a) of the Penal Code Cap 17 and one count of Assault Occasioning Actual Bodily Harm, contrary to section 245 of the Penal Code Cap 17.

2 You pleaded guilty to both counts when the charges was read and explained to you and after you confirmed that you understood the charges.

3 A summary of facts was submitted by State Counsel, which was put to you and you admitted the facts set out therein. A copy was tendered as exhibit 1. A copy of the Medical Report of the victims was tendered as exhibit 2 by State Counsel with the consent of Defence Counsel.

4 I have reviewed the facts against the particulars of the offence charged in this case. I am satisfied that it supports the elements of the charges in the information laid against you by the state.

5 I therefore convict you as charged on both counts.

Facts For Sentencing

6 With regard to the Act With Intent to Cause Grievous Harm, contrary to section 224(a) of the Penal Code Cap 17, the brief facts were that on 22 April 2008 at about 9pm, Iliyaz Ali, 25 years, businessman of Wainadoi and you (the accused) went to bed with your two young childten Aliana Shama Ali aged 3 years and Nahish Ali age 14 months old. In the middle of the night, Nahish Ali starting crying and was told by you to keep quite. Nahish kept crying because he wanted milk. You became frustrated, took the burning mosquito coil and burnt the palm of Nahish’s left hand. He screamed in pain and agony and his father took him to his grandmother Jaimul Nisha to comfort and soothe the victim.

7 With regard to the Assault Occasioning Actual Bodily Harm, contrary to section 245 of the Penal Code Cap 17, the brief facts were that on 28 April 2008 at about 11pm, you took your two children in your family car following a dispute with your husband. You did not have a licence to drive a motor vehicle. The police were asked to assist in stopping you from driving the car with the two young children in it. When the police and your husband tried to take Nahish from the car, you to release him and you attempted to choke his neck and threatened to kill him.

8 On 29 April 20008 Nahish was medically examined at Navua Hospital and it was established that he sustained serious injuries to the palm of his left hand from being burned with the mosquito coil and soft neck tissue around his neck, consistent with the choking attempt by you, his mother.

9 You admitted the above facts.

Mitigation

10 Mr. Reddy, your counsel had submitted the following in mitigation on your behalf:

• You are a first offender;
  
• You pleaded guilty;
  
• You have reconciled with your husband;
  
• You have sought counseling with a Social Welfare Officer, who have provided a report and tabled as exhibit 3;
  
• You are undergoing anger management counseling through your religious institution;
  
• You have spent 2 months in custody before you were released on bail pending your trial;
  
• You are remorseful and your guilty plea shows you have accepted accountability on your part;
  
• The fact that there is an issue of bad relations with your husband and his family that is at the back of this incident.
  

11 From the above Mr. Reddy submits that the court considers a non-custodial sentence as there are special circumstances namely:

• The accused is nursing a 3 month old baby who is breastfed;
  
• Husband is reconciled with the accused;
  
• Nature of the offending is such that there no outside persons who had been victimised.
  

12 Ms Tabete for the State, was gracious, in conceding that from a holistic approach and given the family and domestic nature of the offending in this case coupled with you guilty plea, evidencing your willingness to accept responsibility, a non-custodial sentence may not be inappropriate. She further submitted that the State is concerned about the rights of the 3 month old baby to be with the mother at this very vulnerable stage, especially when she needs to be breast fed.

13 She also opined to the court that if the court was considering a non custodial sentence, that the court take appropriate steps to protects the interest of the victim child having to live in a home with parents, who may be violent towards him.

The sentence

14 I now turn to consider the sentence for each count of the offence charged against the accused. For count 1 with regard to Act with Intent to Cause Grievous Harm, contrary to section 224(a) of the Penal Code Cap 17, the liable penalty is life imprisonment.

15 In the State v Mokubula [2003] FJHC 164, Justice Shameem reviewed several Court of Appeal and High Court cases on sentencing with regard to offences under section 224 of the Penal Code cap 17. On that basis the learned Judge, concluded:

‘On the basis of these authorities, the tariff for sentences under section 224 of the Penal Code 17, is between 6 months imprisonment to 5 years imprisonment. In a case of an attack by a weapon, the starting point should range from 2 years imprisonment to 5 years, depending on the nature of the weapon.’

16 In this case the need to ensure that young children who at vulnerable age, need to be protected by the court, especially against violent parents and the seriousness with which Parliament considers offences of this kind in imposing life imprisonment as the maximum penalty, I would chose 2 years imprisonment as the starting point of the sentence in this case.

17 I have carefully considered the mitigating factors submitted by Mr. Reddy on behalf of the accused. I accept those factors, which I are referred to above. I would reduce the sentence by 6 months imprisonment, leaving a sentence of 18 months imprisonment.

18 I have taken the following aggravating factors into consideration:

• The fact that the victim is a vulnerable 14 month old boy;
  
• Use of a burning mosquito coil to inflict serious injury on the young boy;
  
• The fact that the young boy was an innocent victim of the accused problems/frustration with her husband.
  

For the above aggravating factors I would increase the sentence by 12 months imprisonment to 30 months.

19 For the guilty plea and its consequence in saving the Court’s time and resources, I would further discount the term of imprisonment by 10 months. The term of imprisonment in this case is 1 year 8 months.

20 With regard to the Assault Occasioning Actual Bodily Harm, contrary to section 245 of the Penal Code cap 17. I would take the starting point of the sentence as 9 months imprisonment. I would reduce it by 4 months for the mitigation and increase it by 6 months for the aggravating factors. For the guilty plea, I would further discount the sentence by 3 months to 8 months imprisonment.

21 Both sentences are to be served concurrently. This would mean a total sentence of 1 year 8 months imprisonment for both counts.

Suspend or not

22 Mr. Reddy for the accused have asked that the court consider, a non custodial sentence. Under section 29 (1) of the Penal Code Cap 17, a court may suspend a term of if imprisonment if there are special circumstances that warrant such a decision. In considering the issue of suspending or not of the term of imprisonment in this case, I noted the fact that the husband of the accused is reconciled with her and the best interest not only of the victim, but of all three children, especially the 3 month old baby, that their mother is not separate from them. I find support in this from the observation of Justice Pathik in Prem Chand v The State [1997] 43 FLR 217. I am satisfied that the following factors constitutes special circumstances sufficient for the court to suspend the term of imprisonment in this case:

• The accused has already served 2 months in prison custody while awaiting trial;
  
• The accused now has a 3 month old baby son, who is breast fed and needs her mother;
  
• The accused have demonstrated, through her own initiative, to address her own deficiency as a parent by seeking counseling for anger management and to be followed by marriage guidance counselling through their religious organization;
  

23 This court wish to make it clear to the accused that her behavior towards her own 16 month old son, who was the victim of her assault, was totally unacceptable and reprehensible. You should be ashamed of your conduct. You must continue with counseling especially for anger management. Both you and your husband should take up the opportunity offered by your religious organization to undergo marriage counseling. You should be in no illusion that you were only spare imprisonment on this occasion because of your young and vulnerable children, who stand to suffer the most and unfairly in my view, if you were to serve your term of imprisonment.

24 In conclusion, the sentence of the accused shall be 1 year 8 months imprisonment suspended for 2 years with effect from today.

25 The accused is advised that if she commits another offence during the 2 year operational period of his suspended sentence in this case, the court who deals with that later offence may activate part or all of the imprisonment term imposed by this court on this occasion in addition to that which it may impose on that later occasion.

ORDER

26 I make the following order:

(i) Zahiri Rafiq Khan d/o Mohammed Khan you are hereby sentenced to 1 year 8 months imprisonment suspended for 2 years with effect from today.

Isikeli Mataitoga
JUDGE

At Suva
3 November 2008.