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Afzal v The State [2004] FJHC 456; HAA0099.2004L (8 September 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0099 OF 2004L

MOHAMMED ALEEM AFZAL
f/n Mohammed Afzal

v.

THE STATE

Counsel: Mr. I. Khan for the Appellant
Ms. A. Driu for the State

JUDGMENT

The appellant was convicted before the Magistrate’s Court, Rakiraki on a charge of common assault and was sentenced to imprisonment for 7 days. He appeals the sentence.

Statement of Offence

COMMON ASSAULT: Contrary to section 244 of the Penal Code, Cap. 17

Particulars of Offence

MOHAMMED ALEEM AFZAL s/o Mohammed Afzal on the 7^th day of December 2003 at Qalau, Rakiraki in the Western Division unlawfully assaulted Krishna Lalli s/o Poth Raju.

The appellant pleaded not guilty before the Learned Magistrate and gave evidence and called one witness to give evidence on his behalf.

The brief particulars of the offence as found by the Learned Magistrate are that on 7^th December 2003, the appellant had unlawfully assaulted the complainant. There was clearly a dispute as to who assaulted who and the general circumstances surrounding the commission of the offence.

However, the Magistrate found that the complainant was 60 years of age and has been living at Qalau for a long period of time. At 2.00pm on the 7^th December 2003, he was going home, one Jumbo came and asked about his cattle and Jumbo kicked his leg and he fell in the drain, grabbed his neck, he said that he knew the accused as Jumbo and his father’s name is Afzal. He identified Jumbo as the accused that is the appellant in these proceedings. He says that he was subsequently assisted and got medically examined.

The Learned Magistrate did not accept the evidence of the appellant or his witness and accordingly convicted the appellant and sentenced him to imprisonment for 7 days.

The offence with which the accused is charged carries a maximum penalty of 1 year’s imprisonment. It is indeed at the bottom end of offences and it is indeed a very prevalent offence in this country. The resultant circumstances with respect to the complainant are such that he did not suffer any significant injury as a result of the assault.

Mr. Khan on behalf of the appellant submits that the appellant is 20 years of age. He is a single man. He is a farmer by occupation and has limited education. He further submits that his mother is 55 years of age and suffering from severe illnesses and his father is 56 years of age and a sickly person. It is submitted that the appellant is looking after the family by providing financial assistance and medical treatment from his income as a farmer.

He has no prior convictions.

Counsel for the appellant urges the court to invoke the provisions of section 44 of the Penal Code and conditionally discharge the appellant without conviction.

State Counsel does not oppose such a cause and in doing so, confirms the matter is only common assault and that a conditional discharge under section 44 would be appropriate.

I have been referred to numerous authorities as to appropriate sentences in circumstances such as this, and also as to occasions upon which the provisions of sections 42 and 44 have been utilized by the Court.

When imposing a recognizance pursuant to section 42 of the Penal Code, Mr. Justice Govind in State v Elenoa Naqatima – HAC0016 of 2000L said:

“Justice is compassion, justice is empathy and justice is fairness.”

His Lordship also said when invoking the provision of section 44 in the State v Ivamere Marama – HAC0005 of 2001L said:

“She is remorseful and penitent, I have no doubt.”

I am sure those descriptions apply equally to the appellant in this matter. He is 20 years of age. He has no prior convictions and it is difficult to describe him as a criminal. He is a first offender and a person who comes before the court as a person of good character and he has on his submissions that have been placed before the court, the obligation and burden of maintaining his family.

In the circumstances therefore, I am satisfied the Learned Magistrate erred in imposing a conviction and sentence of 7 days of imprisonment and accordingly the appeal is allowed.

The conviction and sentence of the Magistrate’s Court is quashed, the appellant is discharged conditionally pursuant to the provisions of section 44(1) of the Penal Code subject to the condition that he commit no offence during a period of 12 months from today and further that should he change his place of residence that he advise the police at Rakiraki within 7 days thereof.

JOHN CONNORS
JUDGE

At Lautoka
8 September 2004

Endorsement: The provisions of section 44(2) of the Penal Code were explained to the accused.