Riaz v State [2008] FJHC 403; HAA126.2007 (25 January 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal Case No : HAA 126 of 2007

BETWEEN:

MOHAMMED RIAZ
Appellant

AND:

THE STATE
Respondent

Counsel: Mr. M. Raza for the Appellant
Ms. H. Tabete for the Respondent

Date of Hearing: Wednesday 16th January, 2008
Date of Judgment: Friday 25th January, 2008

JUDGMENT

Background

[1] The appellant appeared in the Magistrates’ Court at Nasinu on a charge of assault occasioning bodily harm, contrary to section 245 of the Penal Code. After waiving his right to legal representation, the appellant pleaded guilty to the charge. He was sentenced to 3 months imprisonment. He appeals against the conviction and sentence on the following grounds:

(a) THAT the Learned Trial Magistrate erred in law and in fact in convicting the Appellant without promoting any reconciliation, as required under section 163 of the Criminal Procedure Code, despite the fact the Appellant informed the Learned Trial Magistrate that he had reconciled with the Complainant.

(b) THAT the sentence imposed by the Learned Trial Magistrate is harsh, excessive and wrong in principle.

Consideration of Grounds

[2] Section 163 of the Criminal Procedure Code provides:

In the case of any charge or charges brought under any of the provisions of subsection (1) of section 197 or of section 244
or of section 245 or of subsection (1) of section 324 of the Penal Code, the Court may, in such cases which are substantially of a
person or private nature... and which are not aggravated in degree, promote reconciliation and encourage and facilitate the settlement
in an amicable way of the proceedings, on terms of payment of compensation or on other terms approved by the Court, and may thereupon order the proceedings to be stayed or terminated.

[3] The decision to promote or not to promote reconciliation is discretionary. In an appeal against exercise of discretion, the appellant has to demonstrate that the learned Magistrate:

[a] made an error of principle, or

[b] failed to take into account all relevant matters, or

[c] took into account irrelevant matters, or

[d] was plainly wrong.

[4] The appellant was charged with a reconcilable offence. The complainant was his wife. The offence arose from a domestic dispute when the appellant after unsuccessfully searching for an employment arrived home and was questioned by the complainant. The appellant lost his temper and slapped the complainant on her right cheek and right ear. Medical examination revealed tenderness on the complainant’s ear and some other parts of the body. The injuries were not serious.

[5] When the appellant mitigated on his behalf after pleading guilty, he informed the learned Magistrate that he had reconciled with his wife and that he would be going to Labasa to bring her back to their home in Suva. The learned Magistrate then adjourned the proceedings to the 9th of October, 2007 for sentencing.

[6] On the 9th of October, 2007 the learned Magistrate after identifying the mitigating and aggravating factors set out below, sentenced the appellant to 3 months imprisonment:

Mitigating Factors

[a] Pleaded guilty at the first reasonable opportunity.

[b] Young Offender.

[c] First Offender.

[d] Has reconciled with the complainant.

[e] Unemployed.

Aggravating Factors

[a.] Assaulted his wife for no good reason.

[b.] This is not the first time he has assaulted his wife.

Repeat Offender Re: Assault.

[c.] Doctor in the Medical Report suggested the accused may be on drugs (marijuana).

[d.] Medical Report sustained injuries to the ear, right knee, area, back and backside.

[7] Counsel for the appellant submits that the learned Magistrate not only failed to consider reconciliation, but took into accounts extraneous matters in sentencing such as the previous assault and drug use by the accused.

[8] I accept that the learned Magistrate should not have taken the drug use and the previous assault as matters of aggravation. These matters were contained in the medical report of the complainant. Apparently, these matters were relayed to the doctor by the complainant and were hearsay evidence. An accused should be punished on the basis of the charged offence and admitted facts. The appellant did not admit to the previous assault and to the drug use, and therefore these matters should not have been used as matters of aggravation to punish the appellant (see, Vakalalabure v The State Criminal Appeal No. CAV0003 of 2004S).

[9] There is no doubt that the circumstances of the offending were private in nature. The purpose of reconciliation in a domestic case is not to condone the abuse of a wife by the husband but to preserve their relationship according to their wishes. However, before acceding to the wishes of the parties, the court must ensure that no undue pressure was placed on the wife to reconcile because of the weak bargaining power that women have in society and in the family (see, State v Manu Chandra [2005] HAA 005/05S).

[10] Bearing in mind the mitigating factors such as the plea of guilt, the age and previous good character of the accused, and the minor injuries sustained by the complainant, the learned Magistrate should have afforded the accused an opportunity to have his wife made available in court to confirm the accused’s assertion that he had reconciled with her. Since the appellant was unrepresented, the obligation was on the learned Magistrate to encourage and facilitate reconciliation in an amicable way.

[11] The learned Magistrate’s failure to discharge her judicial function properly prevented her from doing justice to the appellant according to law (see, Davendra Bijay v State [1997] 43 FLR 144). The appellant served three days in prison before he was granted bail. Spending three days in prison is a form of punishment for a first time young offender. The complainant confirmed to this Court that she has reconciled with the appellant and they are living together. I am satisfied that she has willingly reconciled with her husband to preserve their marriage.

[12] Both grounds of appeal succeed.

Result

[13] Appeal allowed. Conviction is quashed and sentence is set aside.

[14] The proceedings against the appellant are terminated under section 163 of the Criminal Procedure Code.

Daniel Goundar
JUDGE

At Suva
Friday 25th January, 2008

Solicitors
Mr. M. Raza & Assoc. for the Appellant
Office of the Director of Public Prosecutions, Suva for the State