State v Sharma [2010] FJHC 293; HAC091.2009S (12 August 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 091 OF 2009S

STATE

vs

MAHENDRA SHARMA

Counsels: Mr. S. Vodokisolomone for the State
Ms. S. Vaniqi for the Accused

Hearing: 22nd and 28th July 2010
Sentence: 12th August 2010

SENTENCING

1. In the presence of your counsel, on 22nd July 2010, you pleaded guilty to the following charge:

Statement of Offence

MURDER: contrary to section 199 and 200 of the Penal Code, Act 17.

Particulars of Offence

MAHENDRA SHARMA f/n Mansa Ram between 13th day of July 2009 and 20th day of September 2009 at Waidroka, Serua, Navua in the Central Division, murdered SIDDHARTHA SUVEER SHARMA f/n Mahendra Sharma

2. The matter was then adjourned to 28th July 2010, wherein the prosecutor presented his summary of facts to the court. Briefly, the facts were as follows. On 15th December 1991, the accused got married to one Radha Sharma. He had three sons from this marriage. It ended 11 years later in November 2002. He was not allowed to see his sons. In 2000, the accused formed a relationship with Ravita Kumar, out of which the deceased was born on 27th July 2001. The two got married on 13th February 2003. Life was pleasant for the accused, until his wife had an affair with a co-worker. The family became embroiled in a family court battle in September 2007. The result was full custody of the deceased to the mother, with the accused given visitation rights once every 3 weeks. In April 2008, the accused divorced his wife.

3. These life experiences troubled the accused, and he thought about suicide. He felt lonely. He wasn't given the right to visit his three children from his first marriage. He felt isolated by his family. The deceased was taken away from him, and given to the mother. He heard stories that the mother was not properly caring after the deceased. She re-married and moved to New Zealand, and left the deceased with her parents, in Sigatoka. In June 2009, the accused planned to kill himself and his son to resolve his turmoil.

4. On 13th July 2009, while exercising his visitation rights, the accused took his son in a bus to Waidroka, Navua. This was after 5pm that day. After getting off the bus, the two followed the Waidroka Bay Resort Road and walked up the hill near to the Telecom Fiji Limited transmetre tower. The two were tired, and rested near the road for two to three hours. The deceased fell asleep. The accused took out the deceased's spare pair of jeans, and used the same to suffocate the deceased by covering his mouth and nose tightly with the aid of his right hand, and choked the deceased's neck with his left hand. The child pleaded for help, but to no avail. He died a few minutes later. The accused later attempted suicide, but he didn't succeed.

5. The accused admitted the prosecution's summary of facts. Through his counsel, he admitted that by suffocating and choking the deceased to death, he committed an unlawful act which caused the deceased's death. He also admitted, through his counsel that, at the time, he had the intent to kill the deceased. As a result, the court found the accused guilty as charged, and convicted him accordingly.

6. The accused is a first offender. I have considered his antecedent report. I have also considered his written plea in mitigation.

7. For the offence of murder, there is only one mandatory sentence, that is, a life sentence. However, the court is entitled to fix a minimum period to be served by the prisoner, before he may apply for parole, pursuant to section 33 of the Penal Code, Chapter 17. After the 1st February 2010, the court when sentencing a person to life imprisonment, "must fix a period during which the offender is not eligible to be released on parole", pursuant to section 18(1) of the Sentencing and Penalties Decree 2009.

8. In this case, I take into account what your counsel advanced in mitigation. You are 46 years old, twice married, with three sons from your first marriage. You have a Bachelor of Arts Degree in language from a university in India. You are a first offender. You have spent 10 months in custody. You co-operated with the police during their investigation. You pleaded guilty to the charge and therefore saved the court's time. You are further tormented by the loss of your son, which was caused by your own hands. This fact will haunt you for the rest of your life, and in a sense, is a life sentence in itself. I take note of the troubles and turmoil you have gone through in your two marriages. You felt that the whole world was against you. No matter what the pressures there are in life, it is no excuse, as a parent, to take the life of your child.

9. In fact, I was minded to set a minimum term of 18 years imprisonment, as a message to parents not to unlawfully take the life of their children. However, after carefully reading your police caution interview statements, your counsel's written plea in mitigation and the prosecution's sentencing submissions, I have decided that, the justice of your case, demands a minimum term of 13 years.

10. I therefore sentence you to life imprisonment, and you are to serve a minimum term of 13 years imprisonment, or you are not to be paroled until you've served 13 years imprisonment, pursuant to section 18(1) of the Sentencing and Penalties Decree 2009.

Salesi Temo
ACTING JUDGE

AT Suva
12th August, 2010