State v Singh [1997] FJHC 62; HAC0013T.1996S (26 May 1997)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.0013 OF 1996

THE STATE

V

KULDIP SINGH

Counsel: Mr. J. Auld for the State
Mr. M. Raza for accused

Hearing: 26th May 1997

Sentencing: 26th May 1997

SENTENCING REMARKS OF PAIN J

The accused was charged with murder in the Magistrates Court on 18th January 1996. On 11th April 1996 he was committed to this Court for trial. The Depositions were received in this Court on 20th August 1996.

An information alleging murder was filed by the Director of Public Prosecutions on 10th September 1996. An amended information was filed on 20th March 1997 alleging the offences of attempted rape and murder.

On 24th March 1997 the accused was released on bail, having been held in custody for just over 14 months without trial.

The trial was due to commence today 26th May 1997. A further amended information was filed today for the offence of manslaughter only. Upon arraignment the accused pleaded guilty to this charge.

An agreed summary of facts was read to the Court. This gives details of how the accused and a friend met the deceased, Mohini Lata aged 23, in Suva on the morning of 17th January 1996. She joined them. Together they purchased small bottles of beer and went to different places where the beer was consumed. Finally they went to a vacant piece of land on the Suva foreshore that is covered with bushes. There they consumed the last 2 bottles of beer. The facts constituting the manslaughter offence are contained in a short paragraph of the summary that reads:

"The accused then attempted to persuade the deceased to have sexual intercourse with him but she refused. They began arguing and both stood up. They then began to struggle physically with each other. The accused got hold of the deceased by her hair and threw her to the ground causing her head to hit the ground whereby she sustained injuries which resulted in her death. Thereafter he sat on top of her and punched her on the face twice. The accused thereafter began trying to remove the deceased's clothing."

It is hardly necessary to say that the accused must be sentenced only on the charge of manslaughter and on the basis of the facts submitted. "

The antecedent report produced by the Police shows that the accused has two previous convictions. On 2nd June 1993 he was convicted on a charge of assault occasioning actual bodily harm and was fined $60. On 11th December 1995 he was convicted on a charge of obtaining money by false pretences and sentenced to 18 months imprisonment, suspended for 2 years. There has been no application to activate this sentence.

The accused is now 23 years of age. He is married with one child. His counsel outlined his personal and family circumstances. Counsel submitted that the offence was out of character for the accused. Liquor seems to have been responsible for his behaviour. The circumstances do not show an intent to cause harm or injuries. The deceased was thrown to the ground and hit her head. It was not an act that would be expected to cause serious injury or death. It is submitted that a suspended sentence is usually imposed for this type of offence. Accordingly, in view of the time the accused has spent in custody, it is submitted that he should now be released or at most, a suspended sentence imposed.

On the facts given, it must be accepted that the fatal injury was not inflicted by a direct blow of the accused. It was sustained when he threw her to the ground and her head hit the ground. On that basis, serious injury would not have been intended. This would normally place such offence in a relatively low category of seriousness.

However, there are some aggravating circumstances present in this case.

This was an unprovoked attack on a young woman victim. It was not, as is often the case, a willing fight between two able bodied men. It occurred because the victim refused to have sexual intercourse with the accused. That was her right and the accused should have desisted and let her leave if she wished to. Instead he persisted and endeavoured to overcome her resistance by force. He took hold of her hair and threw her to the ground. This was done with sufficient force to cause a fatal injury when her head hit the ground. The accused then sat on top of the victim, punched her twice in the face and started to take off her clothing.

The accused caused this death in the course of a deliberate assault on the victim. His series of actions clearly show his purpose. The assault was for the purpose of overcoming her resistance and forcing her to have sexual intercourse after she had refused. That is a particularly aggravating circumstance. In my view, it clearly differentiates this case from others where death is caused by a single blow in the course of a fight. It is tantamount to a killing, albeit unintentional, in the furtherance of an unlawful object. An object, I might say, of a reprehensible sexual nature that is deprecated in the community.

In view of this, a nominal or suspended sentence is inappropriate.

I do not overlook the relatively minimal nature of the assault that actually caused the death. However, the particular aggravating features in this case are substantial.

I consider the appropriate sentence for a manslaughter offence of this nature to be in the region of 5 years imprisonment.

The accused receives no concession for good character. He has shown a propensity for violent conduct with a previous conviction for assault occasioning actual bodily harm.

However, I do have regard to his age. Further he is entitled to some consideration for pleading guilty to the reduced charge of manslaughter. The plea of not guilty was only maintained in respect of a charge of murder.

More particularly he must be given credit for the 14 months he spent on remand in custody. An appropriate reduction in the sentence must be made for that.

Giving allowance for those matters, the term should be 3½ years.

The accused is convicted and sentenced to 3½ years imprisonment.

Justice D. B. Pain