State v Prasad [1998] FJHC 180; HAC0041.1997s (17 April 1998)

IN THE HIGH COURT OF FIJI
(AT SUVA)
Criminal Jurisdiction

CRIMINAL CASES NO. HAC0041 OF 1997

BETWEEN:

STATE

v.

DAVID RAJENDRA PRASAD
f/n David Niyan Muttu

Miss E. Kelly for the State
Mr. J. Maharaj for Accused

SENTENCE

The accused was committed for High Court trial on 5/8/97 on one Count of Attempted Murder on 3/1/97 of his ex-de facto wife and a second Count of Wounding her brother-in-law with Intent to Cause Grievous Harm.

An information alleging these two offences was filed against the Accused on 3rd November, 1997.

In early 1998, the accused advised the court by letter that he wished to plead 'Guilty' if a date could be fixed.

He appeared before me on 20/3/98 where he re-iterated his desire to plead 'Guilty'. I, however, indicated that there were some obstacles to receiving a plea of Guilty to an attempt to actually kill on the First Count and that as to the Second Count, it was more than a Wounding, the victim had received a compound fracture of the skull which was Grievous Harm in anyone's language.

Also, the question of possible legal aid on such serious charges came up. The matter was adjourned so that these things could be explored.

On 3 April 1998 an amended information was presented alleging instead of "Attempted Murder" in the First Count, only "Wounding with Intent to cause Grievous Harm" and in the Second Count "Doing Grievous Harm with Intent to Cause Grievous Harm."

Upon further adjournment, a grant of legal aid was made and Mr. J. Maharaj appeared on 17 April, 1998 when the accused pleaded 'Guilty' to both Counts of the Amended Information.

A Statement of Facts (Ex. 1) was admitted into evidence which showed as follows:

SUMMARY OF FACTS

In approximately 1994, the accused began to live with Roshni Devi as husband and wife at her house at Lot 12 Laubu Place, Nadera. Roshni Devi was separated from her husband to whom she had two sons who lived with her. Roshni Devi's mother and brothers also lived at the house.

The accused lived with Roshni Devi until November 1996. During that time, Roshni Devi and the accused had a daughter, Priya Dharsani Mala who is now about 3 years old.

In November 1996, after a dispute, the accused was chased away from the house. The accused went to live with his mother but often visited the house to see his daughter. When he visited the house the accused was not allowed inside and had to talk from outside. He was also abused by Roshni Devi and her mother and brothers.

At about 8:15 am on 3 January 1997, the accused purchased a short handled cane knife for $6.99 at Ram & Sons Samabula. He was fed up and decided to kill everyone. At about 9 am, he visited the house at Lot 12 Laubu Place, Nadera. He carried the cane knife in a bag.

When he arrived at the house, Roshni Devi's mother was on the verandah. The accused asked to see his daughter and said he wanted all his luggage. Roshni Devi's mother refused to allow the accused to see his daughter and told Roshni Devi to get the accused's clothes from her room. Roshni Devi walked into her room.

The accused then pushed Roshni Devi's mother aside, placed the bag containing the cane knife on the floor and removed the cane knife. The accused then rushed towards the room where Roshni Devi had gone. After hearing the disturbance, Roshni Devi rushed back to the sitting room but was confronted by the accused in the hallway. The accused was saying "I will kill everyone."

The accused struck Roshni Devi three times with the cane knife. The blows landed on both her hands and one blow landed on her upper hand.

Sudesh Chand s/o Prem Chand, Roshni Devi's brother-in-law, who had stayed the previous night at the house, then intervened and pushed the accused aside. The accused then struck Sudesh Chand's head with the knife, causing it to bleed. Roshni Devi was also bleeding.

The accused then ran from the house. As he was leaving, he struck the louvre blade windows with the cane knife and damaged three louvres.

The accused then threw the knife away in front of the house, near the drain and walked away.

Roshni Devi was admitted to C.W.M. Hospital, Suva, on 3 January 1997 and discharged on 8 January 1997. She had a cut on her left elbow and upper arm which required 9 stitches and her right hand tendon was cut, requiring 19 stitches. She still has no movement in her little finger on her right hand and it is numb, Roshni Devi was a machinist prior to the assault but did not work for about one year following it. She returned to work in February 1998. She has not yet fully recovered and her left hand is not yet fully healed.

Sudesh Chand was admitted to C.W.M. Hospital, Suva on 3 January 1997 and discharged on 8 January 1997. He had a head injury which required 9 stitches and a compound skull fracture. The stitches were removed after 2 or 3 weeks and he has visited the hospital several times since then for regular check ups. His injury is now healed. Sudesh Chand is a tailor by profession and was unable to work for 3 weeks because of his injury.

The accused was interviewed by police officers on 4 January 1997. He admitted the offences. He was then charged.

These facts were not challenged, and admitted by Mr. Maharaj on behalf of the accused.

Ms. Kelly for the State made the following submissions:

Offence carries life imprisonment. Limited assistance on sentence. Thomas's "Principles of Sentencing" dealing with the English situation and talks of sentences between 3-5 years, depending on the type of weapon used etc.

Here a cane knife was used. The 2nd factor is the degree of injury intended. In this case, the prisoner announced his intention was to kill, but he did not press home an attack that could have had fatal consequences. He was interrupted in his attack on his ex-de facto spouse by the brother-in-law.

The up-to-date position is that the lady victim has not fully recovered she has loss of feeling still in one finger. The brother-in-law has been monitored on a number of visits to hospital and claims he has fully recovered.

The 3rd factor according to Thomas's text is the degree of injury inflicted. Here they were quite serious.

The 4th factor is the degree of provocation. It is conceded there was provocation in this case.

But there was a degree of pre-planning in that the cane-knife was specially purchased on the morning of the attack.

The sentences in Fiji seem to be lesser than elsewhere. I refer to the case of Epeli Delai v. State Crim. App.NO. HAA0022 of 1995 Pain J. where 2 years was reduced to 18 months.

Mr. Maharaj submitted the following mitigation:

36 years old deep sense of remorse and repentance. He was 8 years old when his father died his grandfather brought him up. He reached class 8 or Form 2 now. At 17-18 years he moved to Suva and worked for Bajpai's Supermarket chain, then into construction industry, and formed his own co. eventually.

Met Roshni Devi with 2 children from previous marriage. Fell in love, lived in de facto relationship. Daughter born to them now about 3 years old.

He says he has saved money to look after his de facto spouse and children well. But business failed - source of income dried up. He became of no financial use to his partner's family. The mother-in-law became resentful of his being in the house without a job.

The mother-in-law became a wedge between them. The indignity and humiliation forced him out. He was thrown out. He retained deep compassion for his daughter. The mother-in-law made him speak to his daughter from outside the window.

On the day in question he went to get his belongings and try to persuade his de facto spouse to come away and stay elsewhere.

The mother-in-law stopped this. It was the straw that broke the camel's back. He bought a knife. He really did not intend to kill. He tried to frighten them to revenge a long period of indignity. He did not employ the cane knife to its full, deadly potential.

He was blinded with fury, but when he saw his daughter, he came to his senses. He struck the louvre blades, and threw the knife away.

He has been in custody since 4.1.97 and has been visited by his ex de facto in prison. She says the mother-in-law has been stopping her from coming to see him as often as she would like. He still loves her.

His previous convictions are for dishonesty not for violence. He wants to leave the past behind him. He should be believed, in my submission.

The victims were out of hospital in 5 days, if I am not mistaken. Ask the Court for mercy.

The prison is serving a 3 year sentence which expires in September of 1999. He asks for a chance.

The Court then imposed sentence as follows:-

I have taken into account all the matters that have been urged on your behalf. You had been subjected to indignity for a long time, but when you could take no more, you did not act on the sudden, but planned some retribution by taking the trouble to purchase a knife. You announced your intention to kill everybody, and may have started to put that plan into execution.

You did not use means, though, that exhibited a fatal purpose. I believe something deterred you, may be your feelings for your ex-de-facto spouse, and no doubt your daughter.

These situations arouse deep feelings, but there is too much domestic violence in Fiji and indeed the world which needs to be massively deterred.

But you have for a long while desired to plead 'Guilty' which is a concrete expression of remorse.

However, we have such serious injuries that the attack cannot be just passed off.

I think the proper sentence would indeed be 5 years imprisonment, but giving a discount for your plea of 'Guilty' and other factors, the sentence I impose is one of 3 years imprisonment on each Count concurrently, and concurrent with your present sentence.

K.J. TOWNSLEY
PUISNE JUDGE

17 APRIL, 1998

HAC0041.97S