State v Naidu [2005] FJHC 99; HAC0001J.2004.B (3 May 2005)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC0001 OF 2004LAB

STATE

v.

NARAYAN SAMI NAIDU

Hearing: 2nd May 2005
Sentence: 3rd May 2005

Counsel: Mr. D. Goundar for State;
Mr. A. Sen for Accused.

SENTENCING

Narayan Sami Naidu, you have pleaded guilty to the manslaughter of Davendra Lal on the 1st day of December 2003. The facts you have agreed to paint a tragic story of friendship, betrayal and revenge. The victim, Davendra Lal grew up with you and was your close friend. In 1998, he started to have a relationship with your wife. The relationship was apparently discovered by your mother, who confronted Davendra Lal and your wife. Your lawyer in mitigation told the court that Davendra Lal and your wife then killed your mother. She was killed as a result of 7 stab wounds and injuries to her head and hands. Davendra Lal and your wife were tried and convicted of her murder. The convictions were set aside by the Court of Appeal, and re-trials ordered. Your wife pleaded guilty to manslaughter. She had already served some 5 years in prison, and was given a suspended sentence by this court.

Davendra Lal was granted bail pending retrial. In breach of his bail conditions he returned to Labasa, and to your neighbourhood. On several occasions Davendra Lal approached you and taunted you with his affair with your wife. You avoided him on each occasion. In September 2003 he assaulted you during the Friendly North Festival. You did not retaliate. On the 1st of December 2003, the victim met you at the courthouse and taunted you again, this time asking you to “give” your present de facto wife to him. You ignored him. On the same day, he taunted you by passing remarks to you on several occasions in town. Finally, after the fourth such incident, you went to the Countdown Supermarket and bought a kitchen knife. You saw Davendra Lal sitting at the cafeteria. He taunted you again as you sat eating at another table. You then got up and stabbed him with the knife three times. A member of the public stopped any further assault.

Davendra Lal died on the 2nd of December 2003 at the Labasa Hospital. The cause of death was heamorrhagic shock as a result of stab wounds to the right chest. You told the police that you had stabbed the victim because he had provoked you about killing your mother.

You were in custody from the 1st of December 2003 to the 25th of February 2004. You are a first offender and are now in a settled relationship with your partner. You have children from your previous marriage and a five year old son from this relationship. You fish and build boats to make a living. I accept that you are not a violent person by nature and that you were subjected to gross provocation by the victim. You have made your peace with the parents of Davendra Lal.

Cases on sentencing for manslaughter indicate a tariff of between a suspended sentence to 12 years imprisonment (Kim Nam Bae v. The State Criminal Appeal AAU0015.1998S). A suspended sentence is usually reserved for cases where the provocation was grave and the degree of violence inflicted minimal.

In this case the degree of violence inflicted by you was not minimal. Indeed the use of a knife to stab a victim is a very serious matter. However, there can be no doubt at all that the victim’s conduct was gravely provocative. Indeed, at the time of the incident which led to this charge, you no doubt thought that the victim had had a relationship with your wife, killed your mother, had been released on appeal, had returned to your community, and was regularly boasting of his behaviour whenever he saw you. He assaulted you and was charged for the assault but was not dealt with for his other behaviour despite your many complaints to the police.

Given the nature of your attack on the victim, I start at 4 years imprisonment. The aggravating factors are that the victim did not die until a day later and that he was in fact awaiting retrial for your mother’s murder.

The mitigating factors are your guilty plea, your good character, and your patience and tolerance since your wife’s betrayal and your mother’s death in May 1998. Also in your favour is your remorse and your earnest attempts to build a new life. I arrive at a sentence of 2 years imprisonment.

I would suspend this sentence. It would be hard to find a case where the victim’s conduct was as provocative as this victim’s. Having cuckolded you, and betrayed your friendship, he allegedly killed your mother (and you clearly believe this although he had not been found guilty of the murder on retrial) and then whilst awaiting trial, taunted you with these events.

For these reasons, I consider it just to suspend your sentence for two years. If you re-offend for the next two years, you may have this sentence re-activated in addition to any term imposed for the subsequent offence.

I sentence you to 2 years imprisonment, suspended for 2 years.

Nazhat Shameem
JUDGE

At Labasa
3rd May 2005