State v NT [2003] FJHC 339; HAC001.2003S (31 July 2003)

IN THE HIGH COURT OF FIJI

AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 001 OF 2003S

STATE

V

NT

Counsel: Mr. J. Rabuku with Mr. S. Leweniqila for State;
Mr. A. Singh for Accused;
2 Social Welfare Officers present;
The juvenile’s father present.

COURT ORDER to suppress offender’s name, address and parents’ names and addresses until further order of the court.

SENTENCE

NT, you have committed the crime of murder. This is your sentence. The Information reads:

Statement of Offence

MURDER: Contrary to Sections 199 and 200 of the Penal Code, Cap. 17.

Particulars of Offence

NT between the 12th day of September, 2002 and the 16th day of September 2002 at Waibau, Naitasiri in the Central Division, murdered Huang Liu Rong.

The facts of the case, as outlined by the prosecution, are that the deceased and her husband lived and worked on a vegetable farm in Waibau. On the 12th of September last year, the deceased’s husband left for Suva market. The deceased was working on the farm with some labourers. You broke into the house to steal. It is not in dispute that you did so believing that the house was empty and you would not be disturbed. However the deceased came into the house. Although you initially hid in the bedroom, when she entered the bedroom you confronted her to prevent her from raising the alarm. She screamed. You told her to be quiet but she continued to scream. You then struck her 3 times with the knife you had in your hand, which you had brought with you.

The injuries found on the deceased, who died four days later in hospital, were very serious indeed. They are listed in the post-mortem examination report, tendered by the prosecution as part of the facts of this case.

There was one large open wound on the head measuring 50x60mm revealing bony tissue. A suture mark extended around the neck 200mm in length. Another wound 80x40mm was found over the left hand and the little finger, ring and index fingers were completely severed. The deceased died of severe head injury caused by the penetrating wound on the head.

The deceased was rushed to hospital where she died four days later. You were apprehended by the police and you admitted the attack and the theft and asked for forgiveness. You were charged with murder on the 18th of September 2002 and have remained in custody since then.

There can be no escaping the fact that this was a most serious offence. You went to the house with a knife and used it on a defenceless woman in her own house. You have left her husband without his partner and three children motherless. One can only imagine their mental suffering as a result of your reckless and violent act. This was a family, which relied on hard work and physical labour for its livelihood. The deceased and her family lived peacefully in the Waibau area and provided employment on their farm for the residents of the settlement. Your act has created a human tragedy within an industrious and peace-loving community. Clearly any sentence I pass on you must reflect society’s disapproval of your conduct and the need to deter.

At the time of the offence you were 14 years old, and a different statutory procedure exists for you under the Juveniles Act from that of adults. Section 31(1) of that Act provides:

"Where a juvenile is found guilty of murder, of attempted murder or of manslaughter, or of wounding with intent to do grievous bodily harm, and the court is of the opinion that none of the other methods by which the case may legally be dealt with is suitable, the court may order the offender to be detained for such period as may be specified in the order, and where such an order has been made, the juvenile shall notwithstanding anything in the other provisions of this Act, be liable to be detained in such place and on such conditions as the Minister may direct.

(2) A juvenile detained pursuant to the directions of the Minister under the provisions of this section shall, while so detained, be deemed to be in lawful custody.

(3) Any person detained may, at any time, be discharged by the Minister on licence which licence may be in such form and may contain such conditions as the Minister may direct, and may at any time be revoked or varied by the Minister.

(4) Where a licence has been revoked under the provisions of subsection (3), the juvenile to whom the licence related shall return to such place as the Minister may direct, and, if he fails to do so, may be apprehended without warrant and taken to that place."

Section 200 of the Penal Code provides:

"Any person convicted of murder shall be sentenced to imprisonment for life."

Section 2 of the Penal Code (Penalties) Amendments Act 2003 provides:

"Where an offence in any written law prescribed a maximum term of imprisonment for ten years or more, including life imprisonment, any court passing sentence for such offence may fix the minimum period which the court considers the convicted person must serve."

Fiji’s Juveniles Act was modelled in spirit and form, upon the Children and Young Persons Act 1933 (UK). The corresponding section, to our section 31, is section 53. Section 53(1) provides:

"A person convicted of an offence who appears to the Court to have been under the age of eighteen years at the time the offence was committed shall not, if he is convicted of murder be sentenced to imprisonment for life, nor shall sentence of death be pronounced on or recorded against any such person; but in lieu thereof the court shall (notwithstanding anything in this or any other Act) sentence him to be detained during Her Majesty’s pleasure, and if so sentenced he shall be liable to be detained in such a place and under such conditions as the Secretary of State may direct."

Section 6 of the Criminal Justice Act 1967 (UK) provides as follows:

"The Secretary of State may, if recommended to do so by the Parole Board, release on licence a person serving a sentence of imprisonment for life or a person detained under section 53 of the Children and Young Persons Act 1933 (young offenders convicted of grave crimes) but shall not do so in the case of a person sentenced to imprisonment for life or to detention during Her Majesty’s pleasure or for life except after consultation with the Lord Chief Justice of England together with the trial judge if available."

The nature of an order under section 53 of the Children and Young Persons Act has been considered "a wholly different form of sentence to a sentence of imprisonment." (R –v- Bosomworth (1973) Crim. L.R. 456.) Archbold (40th Ed) Para. 749c says:

"Section 53 contemplates that during the period specified by the trial judge, the subject shall be detained where the Home Secretary thinks right, and he can therefore put him in a hospital, or a community home or in a hostel or in prison, or indeed wherever he thinks is appropriate to the particular case. Furthermore, by section 61 of the Criminal Justice Act 1967, the Home Secretary, on the advice of the Parole Board, can order the release on licence of any such subject at any time when he thinks fit. Accordingly, one has within the scope of section 53 an entirely flexible procedure in which, as the subject develops and his character matures, the Home Secretary can direct him to appropriate training and eventually secure his release when that release is possible and consistent with the safety of the public."

These were the principles behind the section (R –v- Fwat, Storey and Duignan (1973) 57 Cr. App. R. 840) and evidently behind section 31 of the Juveniles Act. There is however a significant difference between the English provision and section 31. Section 31 does not prohibit the imposition of life imprisonment nor does it provide for a mandatory detention "during Her Majesty’s pleasure" for murder. Indeed, Fiji’s legislature saw fit to include murder with other offences in respect of which a period of detention of any length can be fixed by the court. The length of sentence in the case of a juvenile charged with murder becomes discretionary. In principle therefore, no matter how long the term imposed by the court is, the Minister may release the offender at any time on licence. Although State counsel submitted that a minimum term should therefore be set to avoid the "possibility of usurpation or conflict of roles of the judiciary and the executive", the effect of making such an order would prevent the Minister from releasing the offender on licence until the end of the specified period no matter how deserving he might be of release on licence. Such an order would appear to sit uneasily with the scheme of the Act and might only be justified in the worst cases where deterrence outweighs rehabilitation and the welfare of the child.

The wording of section 31 of the Fiji Juveniles Act is almost identical to section 53(2) of the Children and Young Persons Act (1933). However the latter specifically excludes murder which falls under section 53(1). Section 53(2) provides:

"Where a child or young person is convicted on indictment of an attempt to murder, or of manslaughter, or of wounding with intent to do grievous bodily harm, and the court is of opinion that none of the other methods in which the case may legally be dealt with is suitable, the court may sentence the offender to be detained for such period as may be specified in the sentence."

In Abbot (1963) Cr. App. R. 110, a 16 year old boy was sentenced to be detained during Her Majesty’s pleasure, for the offence of manslaughter. Parker LCJ said that that sentence was the only sentence available for a young person convicted of murder under section 53(1) of the Act but that under section 53(2), life imprisonment was one of the options available to the judge. At page 112, his Lordship said:

"The court has had very grave doubts, however, whether such a sentence for life can properly be described as a period specified. However, in the present case both counsel for the appellant and for the Crown ...... have taken the view that life is a period which can be specified ...... The court on the whole, though not without difficulty, has come to the conclusion that a period may be specified under subsection (2) as life, and accordingly in the present case they will set aside the sentence imposed by the learned judge and substitute a sentence that the appellant be detained for life on the terms of section 53(2) of the Act of 1933."

The legislature in Fiji, included murder in section 31(1) of the Juveniles Act. The result is that a judge may impose any term (including one for life imprisonment) having first concluded that there is no other suitable way of dealing with the case. The result is that where a juvenile commits murder, he may be sentenced to detention for life but need not be.

Such a discretion is in harmony with the various international instruments referred to by counsel for the offender in his well-researched and comprehensive submissions. The International Covenant of Civil and Political Rights, the United Nations Convention on the Rights of the Child, and the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) set down standards for children in conflict with the law. Although Fiji is signatory only to the Convention on the Rights of the Child, the other instruments are part of an influential body of international law. They have been adopted by the United Nations. The principles in them are consistent with the compassionate thread running through our Juveniles Act. In particular the Convention on the Rights of the Child urges the courts to impose imprisonment as a last resort and for the shortest possible time. This is consistent with the ethos behind section 30 of the Juveniles Act (which provides that children shall not be imprisoned for any offence, and that young persons shall not be imprisoned "unless the court certifies that he is of so unruly a character that he cannot be detained in an approved institution..."). Further, in sentencing persons under the age of 18, the welfare of the child is a primary consideration. I accept these principles and have applied them to this sentence.

Mitigation

You are now 15 years old. You were 14 when you committed this offence. Your social inquiry report tendered by the Welfare Officers who gave evidence, Mr. Naitakatini and Mrs. Seru, shows that you had a difficult childhood. Your father was an alcoholic and you were subjected to verbal abuse during your childhood. Your mother supported you and your brothers and sisters with a series of jobs, which took the family from Waibau, to Nadovi, to Vou, to Uluisila to Navovo. Your mother and father have been employed sporadically as casual workers. You were educated to Class 8 level and dropped out of school because your parents had moved to another place. You were smoking tobacco and marijuana by 2001 when you were only 13 years old. You did not sit for the Eighth Year examinations. In 2002 you went back to Waibau and were told by your sister that your parents had separated. You were then staying with your aunt and uncle. Your social welfare report states that you wanted money to visit your parents. Your psychiatric report states that you stole out of greed to overcome your parents’ shortcomings, and that you intended to spend the money in Sigatoka.

Your childhood was therefore a troubled one, with poverty, abuse, truancy and substance abuse featuring substantially. One of your siblings is mentally handicapped. You have a history of headaches and one of your aunts is a regular patient at the St. Giles’ Hospital. Your parents have not always given you the support you needed and it appears that you have frequently succumbed to peer pressure.

You have now been in custody since the 13th of September 2002, at the Boys Centre. You are well-cared for and have responded well to vocational training, counselling, religious education and leadership. The Social Welfare Officers trust you and believe that you will never re-offend. They say that you are no longer a danger to the community. They are working hard to teach you skills and individual responsibility so that you are able to be an independent and strong person. The environment in which you now live has obviously done you a great deal of good and the Welfare Officers are to be commended for the dedication and compassion they have shown in your case. They have told me that you are now a model student and a credit to the Boys’ Centre. They believe that you should remain at the Centre until you turn 18 and that you will receive on-going counselling, education and vocational training.

In addition to these matters, you have pleaded guilty and expressed remorse for your actions at an early stage of the investigations. In court you asked the deceased’s husband to forgive you. These sentiments do you great credit. I accept that you did not plan the murder but that you did plan the theft. I accept that you killed the deceased because you were afraid of discovery and that you did so in a panic.

I accept that there is a very good chance of rehabilitation, and that I have a duty to impose a sentence which fosters that chance. These are the mitigating factors.

Aggravating factors

The aggravating factors in this case are self-evident. The taking of the knife to rob the house, the planning of the theft, the nature and number of the injuries obviously inflicted with great force on the house-owner who discovered you, and the long drawn-out death of the deceased are all aggravating factors of this case. This was a case in which you caused the death of the deceased with malice aforethought. Clearly on the facts of the case, deterrence and denunciation are also relevant to sentence.

Comparable cases

There has been no comparable case in Fiji, thus my lengthy sentencing remarks. Sadal J in State –v- Rupesh Romil Goundar Case No. HAC 0004.95L imposed a five year term of detention under section 31(1) of the Juveniles Act for manslaughter. The offender had killed the deceased with stones because he believed that he had killed the offender’s father. He was 15 years and 6 months old and the Social Inquiry Report concluded that he was no danger to society.

In R –v- Venebles and Thompson [1997] UKHL 25; (1998) AC 407 two boys aged 10½ years old were convicted of the murder of a two year old boy. They were detained, under section 53(1) of the Children and Young Persons Act 1933 during Her Majesty’s pleasure. The trial judge found their conduct to be merciless, cunning and very wicked. He recommended that the offenders serve a minimum term of 8 years each, the actual length of detention he thought was necessary to meet the requirements of retribution and general deterrence.

In England, such a recommendation is not an order. There is no provision corresponding to Fiji’s Penal Code (Penalties) Amendments Act. The minimum term of 8 years was increased to 10 years by the Lord Chief Justice. The Home Secretary however decided that the offenders would serve a minimum of 15 years imprisonment. The increase was clearly a response to public anger and outrage. The offenders applied to quash the Home Secretary’s decision. The decision was quashed on the ground that the Children and Young Persons Act 1933 had created a regime which required the Home Secretary to review detention throughout the period. In the House of Lords, Lord Goff said of the regime applicable to young offenders under section 53(1) and (2) that the Home Secretary had absolute discretion to let young offenders out on licence whether they were detained during Her Majesty’s pleasure under section 53(1), or under section 53(2). Further he found that the Secretary for State was free to apply a sentencing policy which required the serving of a minimum term before release.

Lord Browne-Wilkinson said:

"It cannot be too strongly emphasised that it is not for the courts or for your Lordship’s House to determine how long these two boys should be detained. Parliament has laid down in section 53(1) of the Children and Young Persons Act 1933 (as amended) that a child shall not be sentenced to life imprisonment but in lieu thereof the courts shall sentence him to be detained during Her Majesty’s pleasure. That is the sentence which has been passed on these two applicants. It is accepted by all parties that the decision how long the two applicants shall remain subject to detention is a decision which lies within the discretion of the Secretary of State i.e. the Home Secretary."

The end result of the appeal was that the Secretary of State’s decision to impose a 15 year "tariff" was quashed. The offenders were eventually released on licence after 6 years detention.

In New Zealand sentences for murder are dealt with by the Sentencing Act 2002 which provides that the offender must be sentenced to life imprisonment unless, given the circumstances of the offence and the offender a sentence of imprisonment for life would be manifestly unjust. Juvenile offenders are not exempt from these provisions. In The Queen –v- Casie Rawiri and Others New Zealand High Court (Auckland) T 014047, Fisher J considered this provision in relation to the sentences for murder for two juveniles. He said that under the new regime the offender had to show why it would be unjust to impose life imprisonment, that the test must be satisfied with respect to the circumstances of the offending and the offender, that mitigating and aggravating circumstances needed to be taken into account in applying the test and that the threshold for departure from life imprisonment is a relatively high one. At page 7 he said:

"The case for departing from life imprisonment must be clear and obvious. Potentially qualifying examples include failed suicide pacts, battered defendants, and mercy killings, but there will never be any closed set of categories."

The Sentencing Act (NZ) also gives the Courts the power to increase the minimum non-parole period of 10 years for life imprisonment. That can be done "where the circumstances take the events out of the ordinary range of offending of that particular kind." Fisher J imposed sentences of life imprisonment but did not impose a minimum term.

In South Africa, under the Criminal Law Amendment Act 1997, a life sentence is prescribed unless there are substantial and compelling circumstances justifying a lesser sentence. In S –v- Nkosi A 727/00, referred to in "Sentencing Children Convicted of Serious Crimes" Dirk van Zyl Smit, University of Cape Town, referred to in counsel’s submissions, a 16 year old boy was convicted of murder and housebreaking. He stabbed the deceased during a house-breaking. A life sentence was imposed by the court of first instance. On appeal to the High Court, the Court held that because of constitutional and international obligations to consider the best interests of the child, and to imprison children as a last resort, life imprisonment ought not to have been imposed. It referred to similar approaches of the courts in S –v- Blaauw and S –v- Daniels (also referred to in the Smit article) and decided that life imprisonment for children be considered in the most exceptional circumstances where the child is a danger to society and there is no prospect of rehabilitation.

In New South Wales, Wood C.J. considered an appropriate sentence for a 13 year old boy convicted of the murder of a 3 year old girl. In the course of his sentencing remarks he said that the sentencing regime available to the English Court, was not available in New South Wales. If he imposed a life sentence he could not fix a non-parole period, nor was there provision for the release of the offender "on licence." He sentenced the offender to 20 years imprisonment with a non-parole period of 10 years. The sentence was to be served in a detention centre until the age of 19. Similarly long sentences were imposed in R –v- Poasa Belamatu JJA161 of 1987, and R –v- JPD (2001) 1VSC 2002 with minimum terms of 8 years and 12 years respectively.

I refer to these Australian cases which, although based on a different statutory regime from Fiji, do show the approach of the courts when sentencing young persons for murder.

Life Imprisonment

Section 31 of the Juveniles Act gives to the courts a discretion to impose a sentence appropriate to the offender and the offending. However, the courts must first be satisfied that no other legal alternative exists. There is no such alternative in this case, such as a hospital order. Both counsel agree that a custodial sentence is the only suitable option. Is this a case for life imprisonment?

There is no doubt at all that there are cases which must lead to life imprisonment, even where the offender is a juvenile. In this category would fall cases of planned killing, gratuitous violence, and the killing of the weak and especially vulnerable. Killing accompanied by sexual assault or mutilation of the victim would also fall into this category, deterrence, denunciation and the need to protect the public outweighing considerations of rehabilitation.

However this case does not fall into these categories.

Serious as this case is, and without in any way belittling the devastating loss of a life, I consider that this is not an appropriate case for life imprisonment. Although the injuries you caused were serious, you did not plan the murder, nor did you try to lie to the police about your conduct.

Your youth, evidence of remorse, your willingness to co-operate with the authorities, and the evidence I have heard of rehabilitation and change, persuade me, that this is not a case for detention for life. Further the Convention on the Rights of the Child requests States Parties not to impose sentences of life imprisonment on children under the age of 18. This has also been the approach of the South African courts.

The mitigating factors in this case are such that a sentence of life imprisonment is not necessary to reflect deterrence and denunciation, both of which may be expressed in a shorter term of detention.

In Rawiri (supra) Fisher J said that if he had been left with a statutory discretion he "would have done something adventurous" in the case of a 15 year old girl who had similarly shown remorse and some ability to rehabilitate herself.

Fortunately the courts in Fiji have been given such a discretion and I will exercise it in this case. In the sentencing of juveniles, the courts must give consideration to the fact that persons under the age of 17 are immature and do not have the same intellectual and moral understanding as an adult. Further the effect of imprisonment on a young offender can be far more serious than on an adult, because he/she is still developing that moral and intellectual understanding. Finally a juvenile has better prospects of rehabilitation than an adult and long terms of imprisonment should therefore be avoided.

These considerations however need to be balanced against society’s interests, and the need to hold offenders accountable for what they do. The more serious the offence, the more important society’s interests become. In this case I find that society’s concerns could equally be reflected in a period of detention short of an order for detention for life. Further, such a sentence accompanied by the discretion given to the Minister under section 31 of the Juveniles Act to release you on licence at any time that is deemed appropriate, satisfies the need to ensure that the sentence I pass on you takes into account your welfare as a juvenile.

As such, I decline to order detention for life.

The Starting Point

Counsel suggested that I adopt as the starting point for your sentence the starting point for the calculation of the minimum non-parole period for murder in England. The setting of minimum terms is provided for under the Crime Sentences Act 1997 (UK) and the Powers of Criminal Courts (Sentencing) Act 2000 (UK). That Act provides that a minimum term should be specified in all but the most exceptional circumstances.

In 2002 Lord Woolf C.J. issued a practice direction in relation to the making of recommendations as to the minimum periods to serve for murder. The direction was issued after the European Court of Human Rights found that the fixing of minimum terms by the executive to be a breach of the Convention for the Protection of Human Rights and Fundamental Freedoms.

The direction states that the starting point should be 12 years but can be reduced for limited culpability, mental disorders, stress, partial self-defence or for mercy killings. A higher starting point of 15-16 years would be justified for the murder of the vulnerable, for contract killings, or where the killing was done for gain.

The setting of minimum terms is not directly relevant to identifying a starting point for the sentence itself, although the Woolf directions are helpful as to length and scaling of sentences for the young. Further the 12 years recommended corresponds with the highest end of the tariff for manslaughter sentences in Fiji (Kim Nam Bae –v- The State Crim. App. AAU0015 of 1998S). It would therefore be wrong in principle to choose 12 years as the starting point for murder, which is a far more serious offence.

In the circumstances I choose as my starting point, to reflect the use of the knife, the fact that the killing was done in the course of the robbery and the vulnerability of the deceased, a term of 15 years imprisonment. As a general principle, a range of 12-17 years for the choice of starting point would appear to be appropriate.

To reflect the aggravating and mitigating factors I have already set out including the 10 months you have spent in custody, I would reduce this term to 12 years imprisonment. Although you are very young and remorseful, I can give you no further credit for what was a violent act resulting in the loss of a life. I have already taken into account your youth and what Fisher J called "the reduced culpability of youth due to immaturity and intellectual and moral understanding compared with an adult", in deciding not to impose a term of life imprisonment, but I consider it again as a mitigating factor.

In the circumstances of this case, I consider a term of 12 years imprisonment to be appropriate, satisfying the need for both rehabilitation and deterrence.

Minimum terms

I have the discretion to recommend a minimum term. However, in doing so I would be depriving the Minister for Social Welfare of the power to assess your readiness for release on licence. Such a decision would sit uneasily with the ethos of the Juveniles Act, the Convention on the Rights of the Child, and the Beijing Rules.

Thus far you have benefitted from your custody. You are better supervised and cared for and are receiving support counselling and vocational training. I recommend that both counselling and education continue. If, at the discretion of the Minister you are released on licence in the future, that licence can be revoked if you do not satisfy the conditions of the licence. It is hoped that this regime will help you to rehabilitate yourself. It is a regime best left in the hands of the Minister who will no doubt act on the advice of the Director of Social Welfare and the Commissioner of Prisons. I recommend that he/she will also consult with the victim’s husband who has every right to express his opinion on the matter.

There is of course a real possibility that you will go on to serve part of your term in an adult prison. If that is so then the Minister would have decided that you are a continued danger to the community and that your continued detention is in the public interest. I consider that such assessment and decision are best made by the Minister. I decline to reduce your term to one of 3 years to allow for your release at the age of 18. It is unfortunate that there are no youth detention centres in Fiji, to cater for offenders like you after you turn 17 or 18. However I would be failing in my duty to the public if I were to sentence you to a term of years more appropriate for a far less serious crime.

For these reasons I make no recommendation for a minimum term.

I am told by State counsel that a reformatory centre for young and first offenders at Nasinu, which focussed on rehabilitation and vocational training, is now closed. The authorities would do well to consider the provision of such facilities for young offenders who do not qualify for accommodation at the Boys’ Centre.

Result

I sentence you to a period of detention under section 31 of the Juveniles Act for 12 years.

The circumstances of your detention are matters for the Minister for Social Welfare to decide. I do recommend however that you be given vocational training and education even after any transfer to an adult facility.

The future is now in your hands. Your progress and conduct whilst in custody will be monitored on an on-going basis. If you are released on licence in due course, and you do not conduct yourself well, the Minister can revoke your licence and order that you resume your term of detention. If you continue to work hard, to be responsible and to provide leadership to the other children at the Centre as you have now been taught to do, you have a good chance to rebuild your life on firm foundations. You are now receiving the emotional support that you never received from your parents. You are being taught skills and are learning to equip yourself for adulthood. Accepting this sentence is part of the process of accepting that you are responsible for the deceased’s death, and must be held accountable for it. How long you will remain in custody is a matter over which you have direct control. Do not let yourself down.

Nazhat Shameem
JUDGE

At Suva
31st July 2003