Bano v State [2011] FJHC 227; HAA008.2011 (21 April 2011)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

Criminal Case No: HAA 008 of 2011

BETWEEN:

ASMA BANO
d/o Rahim Buksh
The Appellant

AND:

THE STATE
The Respondent

Counsel: Mr. K. Padayachi for the Appellant
Mr. S. Qica for the State

Date of Hearing: 19 April 2011
Date of Judgment: 21 April 2011

JUDGMENT

[1] Following a trial in the Magistrates' Court at Labasa, the appellant was convicted of damaging property and was sentenced to 6 months imprisonment. She appeals against conviction and sentence on the following grounds:

1. That the learned Magistrate erred in failing to promote reconciliation as the offence was a reconcilable offence and one of a personal and private nature and further that the learned Magistrate was obligated under law to promote reconciliation of such offences;
   
2. That the learned Magistrate erred in imposing a custodial sentence when the appellant was a first offender;
   
3. That the learned Magistrate erred in imposing a custodial sentence by incorrectly applying the case authority cited by him and in failing to follow the principles of sentencing; and
   
4. That the learned Magistrate erred in failing to take into consideration the mitigating factors namely the accused was a first offender and had two young children and the fact that the amount of damage was small.
   

Facts

[2] The appellant is the sister in law of the complainant, Abdul Hamid. On 11 February 2009, the complainant visited the appellant at her home with his wife and children. While they were at her home, an argument developed between the appellant and the complainant's wife. The appellant got hold of a timber and smashed the lights, windows and windscreen of the complainant's car. The total damage to the car was $775.00.

Reconciliation

[3] Under the first ground of appeal, the appellant contends that the learned Magistrate erred in failing to promote reconciliation between the appellant and the complainant pursuant to section 163 of the Criminal Procedure Code.

[4] Section 163 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."

[5] Clearly, section 163, is a discretionary procedure. Before the procedure is invoked the pre-requisites specified in the section must be met. The procedure applied, if the case is substantially of a person or private nature and is not aggravated in degree. If these pre-requisites are not met, then there is no obligation on the court to promote reconciliation.

[6] According to the court record, the appellant appeared in the Magistrates' Court on 5 October 2009, and after waiving her right to counsel, entered a not guilty plea. She was bailed to appear in court on 23 October 2009. On 23 October 2009, the case was adjourned to 10 December 2009 to fix a hearing date. The court record of 10 December 2009 reads:

"Full disclosures served to accused.

Reconciliation not possible.

26/07/10 for hearing".

[7] The trial commenced on 26 July 2010. The complainant gave evidence. He made no reference to the fact that he had reconciled with the complainant. The appellant also gave evidence. She denied damaging the complainant's car.

[8] In my judgment, although the complainant and the appellant were related to each other, the case was not substantially of a private nature. Furthermore, the extensive damage done to the complainant's car aggravated the offence. The appellant showed no remorse for her conduct. She maintained that she had not committed any offence. Without any evidence of contrition and willingness to compensate the complainant for the damage done to his car, there was no legal basis to promote reconciliation. In any event, the learned Magistrate did in fact considered reconciliation and found it was not possible.

[9] In arriving at my conclusion, I disregarded the fresh evidence contained in the affidavits of the appellant and the complainant filed in support of the Petition of Appeal. Fresh evidence can only be led in an appeal with the leave of the court. There was no application made by the appellant to lead fresh evidence, and therefore, the affidavits filed without the leave of the court are disregarded.

[10] The first ground of appeal fails.

Appeal against sentence

[11] The second, third and fourth grounds concern the appeal against sentence.

[12] The contention of the appellant is that the learned Magistrate erred in imposing a custodial sentence when she was a first time offender with two young children and the amount of damage was small.

[13] The learned Magistrate gave detailed reasons for the sentence he imposed on the appellant. He considered that the maximum sentence for damaging property was 2 years imprisonment. After referring to the High Court cases on damaging property, the learned Magistrate picked 6 months imprisonment as his starting point. He added 2 months to reflect the aggravating factors and deducted 2 months to reflect the mitigating factors.

[14] However, nowhere in his sentencing remarks, the learned Magistrate considered suspending the sentence. I find the failure to consider suspending the sentence was an error of law. The appellant was a first time offender and although the offence was not substantially private in nature, the offence arose from a domestic dispute between two relatives.

[15] These were compelling factors to justify suspending the appellant's sentence.

[16] In all circumstances, I find the custodial sentence to be manifestly excessive.

[17] The appellant has now served nearly two months of her sentence. I think it would be just and appropriate not to impose any further punishment on her. I order that the appellant be released from prison forthwith.

[18] The appeal against sentence is allowed.

Daniel Goundar
Judge
At Labasa
Thursday 21 April 2011