State v Shayam [2010] FJHC 166; HAC043.2008 (19 May 2010)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC 043 OF 2008

BETWEEN:

STATE
PROSECUTION

AND:

JOSEPH MARTIN SHAYAM
ACCUSED PERSON

Counsel: State - Mr. L Sovau and Ms Bull
Accused Person - Mr. A Sen

Date of Sentencing: 19th May 2010

SENTENCE

Joseph Martin Shayam you were charged with one count of murder and one count of attempted murder.

After a full trial the three assessors gave their unanimous opinion that you are not guilty of murder on count 1 and guilty of a lesser offence of Act with intent to cause grievous bodily harm on count 2. Accordingly you were acquitted of the offence of murder and convicted for the offence of Act with intent to cause grievous bodily harm.

You used a knife to commit the offence and there is serious provocation involved.

The facts of the case were that the victim and his brother and others came to your house assaulted you, grabbed your daughter and thereafter in your compound when they assaulted you, you first hit the deceased and then hit the brother of deceased with the knife. Your position was that you acted in self defence and you were provoked. Accepting your defence you were acquitted of the murder charge. But you were convicted of a lesser offence on count 2.

In the case of The State v. Dinesh Chand [2002] FJCA 50; AAU0027U.2000s (1st March 2002) specific sentencing guidelines were given on the offence of assault with intent to cause grievous harm.

The tariff for the offence of act with intent to cause grievous harm lies between 6 months imprisonment to 5 years. (State v. Sikeli Tuitoga [2005] FJHC88; HAM0016D.2005S)

In a case of an attack by a weapon the starting point should range from 2years imprisonment to 5 years. (State v. Mokubula [2003] FJHC164; HAA 0052J. 2003

Considering the above I take three years as the starting point.

The aggravating factors are that you used the knife, the seriousness of the injuries and the number. According to the medical report, the victim received multiple soft tissue lacerations to head, back left shoulder and left arm.

I add 1 year for the aggravating factors making the total of 4 years imprisonment.

Your mitigating factors are that you are a first offender, your previous good behavior, that you are remorseful. For last more than 8 years after you were released on bail you have been of good behavior and never violated the bail conditions. Court will also consider the circumstances of this case where there is clear evidence of provocation.

In mitigation Fr. Kelvin Rakesh gave evidence and said that you have shown remorse and you were praying for the victim and his family which evidence was unchallenged.

For those mitigating factors I reduce two and a half years making the total sentence of 18months imprisonment.

Now I consider whether this 18 months imprisonment sentence should be suspended.

Decision of the New Zealand Court of Appeal in R v. Peterson [1994] 2 NZLR 533. (considered in Court of Appeal Fiji in State v. Chand Supra)

Outlined the principles of suspended sentence. It was said,

".....The courts first duty was to consider what would be the appropriate immediate custodial sentence, pass that and then consider whether there were grounds for suspending it". Factors should be considered were clearly mentioned in that case. The factors when it comes to the offender as the age, previous good record, long period of free of criminal activity, and as to the circumstances of the particular case diminished culpability arising through lack of pre meditation, the presence of provocation and cooperation with the authorities all those factors are applicable to the present case.

In this case the accused was of previous good character. This case has taken more than 8 years to start the trial, during which period accused had been of good behavior and further he had not violated the bail conditions for more than 8 years. In State v. Chand (supra), four and a half years delay in bringing the accused to trial was taken into consideration where as here in this case the delay is more than 8 years.

Further this court will take into consideration the mental trauma the accused would have undergone of waiting for the trial for more than 8 years including the murder charge which he was acquitted.

The accused was in remand custody for almost 14 months until he was released on bail on 20th February 2003 and that 14 months period of incarceration has to be taken into consideration.
On the aforementioned factors I find that this is a fit case where the above sentence should be suspended.

Therefore I suspend the 18 months imprisonment sentence for one year.

Finally you are sentenced to 18 months imprisonment suspended for one year.

You have 30 days to appeal.

Priyantha Fernando
Puisne Judge

At Labasa
19 May 2010