Khan v State [2009] FJSC 6; CAV0019.2008S (12 February 2009)

IN THE SUPREME COURT OF THE FIJI ISLANDS
AT SUVA

CRIMINAL APPEAL NO. CAV0019 OF 2008S
(Fiji Court of Appeal No.AAU0060 of 2007S)

BETWEEN:

MOHAMMED SHAFIL KHAN
Petitioner

AND:

THE STATE
Respondent

Coram: The Hon Justice Kenneth Handley, Judge of the Supreme Court
The Hon Justice David Ipp, Judge of the Supreme Court
The Hon Justice Ronald Sackville, Judge of the Supreme Court

Hearing: Wednesday, 11th February 2009, Suva

Counsel: Petitioner in Person
Mr P. Bulamainaivula for the Respondent

Date of Judgment: Thursday, 12th February 2009, Suva

JUDGMENT OF THE COURT

1. This is a petition for special leave to appeal against a decision of Byrne JA, sitting as a single judge of the Court of Appeal, whereby he refused the petitioner leave to appeal out of time against his conviction of offences of abduction, unnatural offence and murder and against the sentence of life imprisonment imposed on him.
   
2. On 30 August 2004 the petitioner pleaded guilty in the High Court to the offences in question. He was convicted of those offences and Connors J sentenced him to life imprisonment.
   
3. The offences involved cruelty and brutality to an extreme degree. The petitioner, who was 14 years of age, ran after a seven year old girl, caught her and took her into his house. By holding a knife at her neck, he forced her to lie on the floor and despite her pleas and cries, sodomised her. Thereafter he stabbed her hand, leg and back and slit her throat. She died and he threw her body into a river.
   
4. In his confession to the police, the petitioner said that the deceased looked so beautiful that he decided to rape her. He then decided to kill her to avoid her reporting to anyone what he had done.
   
5. After killing the deceased he tried to hide his crimes. Apart from disposing of the body, he attempted to clean the blood from his bedroom and to get rid of the incriminating evidence. He gave false information to those looking for the deceased. It was only when the body was recovered that he confessed.
   
6. Connors J said that it was difficult to conceive of a more brutal act that could be committed by a young boy on a seven year old girl. The consequences of the offences were catastrophic to many people.
   
7. The petitioner applied to the Court of Appeal on 6 June 2007 for leave to appeal against his conviction and sentence. The petitioner was sentenced on 23 September 2004 and his application for leave to appeal was more than two years out of time. He therefore required leave to appeal out of time.
   
8. Byrne JA, sitting alone, held that the petitioner was properly convicted.
   
9. When dealing with the sentence, Byrne JA observed that under s 200 of the Penal Code a sentence of life imprisonment was mandatory. His Lordship pointed out, however, (as did Connors J) that s 200 has to be read with s 33 which provides that where an offence in any written law describes a maximum term of imprisonment of 10 years or more, including life imprisonment, any court passing sentence for such offence may fix a minimum period which the court considers the convicted person must serve.
   
10. Byrne JA said that "the effect of s 33 read with s 200 and s 31(1) of the Juvenile Act (CAP 56) therefore is that a juvenile convicted of murder may be sentenced to detention for life but need not be." His Lordship however agreed with Connors J that, having considered the seriousness of the offences, the matters in mitigation, and the aggravating features, the imposition of life imprisonment was required. He refused to grant an extension of time within which to appeal.
    
11. Under s.35 (3) of the Court of Appeal Act the petitioner has the right to appeal to the full court of the Court of Appeal against the decision of Byrne JA refusing to extend time to appeal. The petitioner has not exhausted his remedies under the Court of Appeal Act. Strictly speaking, therefore, the petitioner does not have a right to apply for special leave to appeal to this Court.
    
12. It was only late in the day that the State drew attention to the fact that the petitioner is seeking to appeal against a judgment that is not final. This Court, therefore, has fully considered the issues that are raised. These issues are serious and it is in the interests of all involved that they are ventilated and disposed of as soon as possible. For this reason this Court shall express its views as to the merits of the petition.
    
13. The petitioner argues:
    
    1. Insufficient regard was had to the fact that, according to him, his conduct was not premeditated.
       
    2. The fact that he gave different versions of what occurred "showed that a child is making up these stories and not an adult".
       
    100. As he was only 14 years of age when he committed the crime he should not be sentenced to life imprisonment.
         
    4. He is attending rehabilitation courses in prison and is developing "positively".
       
14. The principal relief that the petitioner seeks is to be given "a fixed sentence so that I can know the date for me to be discharged".
    
15. It is apparent that Connors J gave careful attention to the issue whether a minimum period of imprisonment should be fixed as provided by s 33 of the Penal Code. His Lordship considered that that was inappropriate. Byrne JA, too, carefully considered this question and came to the same conclusion. The appalling circumstances of the crimes entirely justify these decisions. No error of discretion has been committed. The petition must be dismissed.
    
16. It is important nevertheless that the petitioner, who is a young man, should not be lost in the system, that his situation be reviewed as the law provides, and that he understands the remedies available to him.
    
17. Counsel for the State, Mr Bulamainaivalu, has helpfully drawn attention to s.115 of the Constitution. This section provides that the President, acting on the advice of the Commission on the Prerogative of Mercy, may grant to a person convicted of an offence a pardon or conditional pardon, or a respite of the execution of the punishment imposed for the offence, or substitute a less severe form of punishment or remit the whole or part of the punishment imposed. According to Mr Bulamainaivalu, the Commission will consider examining a request from an offender for relief under s.115 once the offender has served 10 years imprisonment.
    
18. By s.64 of the Prisons Act (cap 86), the Controller of Prisons is required to report at stipulated times to Minister on the general condition of prisoners (such as the petitioner) sentenced to life imprisonment.
    
19. Mr Bulamainaivalu has informed the Court that, according to an internal administrative directive by the Prisons Department, the Department should refer a prisoner to the Commission on the Prerogative of Mercy after the Prisoner has served ten years of his term of life imprisonment accordingly.
    
20. The petitioner was sentenced to life imprisonment on 23 September 2004. His case should therefore be referred to the Commission after 23 September 2014. In the ordinary course of practice in the Prisons Department this should be done by the Department itself. It would of course be open to the petitioner, himself, to refer his case to the Commission, once he has completed serving ten years imprisonment.
    
21. The petitioner’s release from prison, should that occur, will depend substantially on his behaviour in prison, how his personality and character develop while he is incarcerated and to what degree he is rehabilitated. These matters will be considered when a better informed decision can be made as whether it would be in the interests of society and in his interests to be released into the community.
    

Hon Justice Kenneth Handley
Judge of the Supreme Court

Hon Justice David Ipp
Judge of the Supreme Court

Hon Justice Ronald Sackville
Judge of the Supreme Court

Solicitors:
Petitioner in Person
Office of the Director of Public Prosecution, Suva for the Respondent