State v Chandra [2010] FJHC 361; HAC031.2009 (26 August 2010)

N THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 31 OF 2009

BETWEEN:

STATE

AND:

ASHISH VIMAL CHANDRA

Counsel: Mr. Qica - for the State
Mr. A Sen - for the Accused

Date of Hearing: 25 August 2010
Date of Sentencing: 26 August 2010

SENTENCE

1. The accused ASHISH VIMAL CHANDRA was charged as follows:

Statement of Offence

MANSLAUGHTER: Contrary to section 198 and 201 of the Penal Code, Cap 17.

Particulars of Offence

ASISH VIMAL CHANDRA s/o Jagdish Chandra on the 14th day of June 2009 at Labasa in the Northern Division unlawfully killed JAMALLUDIN s/o Nurad Din.

2. The accused pleaded guilty to the charge against him.

3. The accused was convicted on his own plea and now I proceed to sentence him.

4. Now the charge against you is Manslaughter and the relevant law is section 198 and 201 of the Penal Code.

5. Section 198 states as follows:

"Any person who by an unlawful act or omission causes the death of another person is guilty of the felony termed manslaughter. An unlawful omission is an omission amounting to culpable negligence to discharge a duty tending to the preservation of life or health, whether such omission is or is not accompanied by an intention to cause death or bodily harm."

6. Section 201 of the Penal Code state as follows: '

"Any person who commits the felony of manslaughter is liable to imprisonment for life."

7. As per the summary of facts, you have said something to the daughter of the victim which made him to assault you on the 14th June 2009. It is submitted that the victim is the one who started the fight first and attacked you with his hands. You have received contusions on your chest and the back. Your position also corroborated by the State and the medical report of yours.

8. The punishment for manslaughter is set out in Section 201 of the Penal Code as per the section you can be punished with imprisonment for life.

9. Now I see the tariff, in Kim Nam Bae vs State Criminal Appeal No AAU0015 of 1998S. The Court of Appeal states as follows:

"The sentencing is not an exact science which is capable of mathematical calculation. This is particularly so with manslaughter where the circumstances and the offender's culpability can vary greatly to a variety of competing considerations. In order to arrive at the appropriate penalty for any case, the courts must have regard to sentences imposed by the High court and the court of Appeal for offences of the type in question to determine the appropriate range of sentence.

The cases demonstrate that the penalty imposed for manslaughter ranges from a suspended sentence where they may have been grave provocation to 12 years imprisonment where the degree of violence is high and provocation is minimal. It is important to bear in mind that this range covers a very wide set of varying circumstances which attract different sentences in different manslaughter cases. Each case will attract the appropriate sentence within the range depending on its own facts."

10. Further in the case of State v Anand Dinesh Mani & Anand Avinesh Mani [2001] HAC 005/00S the court stated at page 2 paragraph 1 and 2. "The maximum sentence for manslaughter is life imprisonment. The maximum in statute is a reflection of how seriously our society takes human life. In cases of gross provocation, sometimes over a period of time the courts have imposed suspended sentences. However this should be regarded as an exception rather than the rule. Where a weapon is used, where an attack is brutal and where the provocation has been overwhelming, a custodial sentence is clearly called."

11. In State vs Naidu (2005) FJHC 99; HAC 0001J.2004B (3 May 2005). Justice Shameem has imposed a two year imprisonment and suspended the same.

12. Considering above judgments the tariff is between a two year suspended term to 12 years imprisonment.

13. Considering the facts of the case, I commence my sentence at 6 years.

14. Now I consider the aggravating factors. You have used a cane knife to assault the victim and you assaulted the victim several times. I increase 2 years for these aggravating factors, now your sentence is 8 years.

15. Now I consider the mitigating circumstances.

1. You are a 1st offender.
   
2. You were 17 years at the time of the incident and now you are 18 years old.
   
3. The victim who initiated the fight on the fateful day.
   
4. You have been assaulted by the victim and your shirt was torn.
   
5. Comparatively the victim is big made and you are small in physique.
   
6. The weapon used is tool of trade, (you and your brother were on the way to your work in the cassava plantation with the cane knife) not purposely brought to attack.
   
7. You have pleaded guilty at the very first opportunity.
   
8. You have co-operated with the police.
   
9. The victim died after 5 days of the incident that shows that you didn't attack to kill him.
   
10. You are remorseful.
    
11. Period in remand.
    

16. Considering the above mitigating factors, I reduce 5 years from your sentence. Now your sentence is 3 years.

17. Your counsel submitted that your sentence be suspended. I am mindful of his submission and the previous decision in State vs Robert Skipper aka Sailosi Ramalimali aka Junior and another HAC 2 of 1997 (unreported case of High Court of Labasa). But considering the nature of the attack on the victim, I decided not to suspend your sentence. But I am not imposing a non-parole period for you.

18. I wish to place it on record of the assistance rendered by the State Counsel. He was very fair in his submission and the prosecution.

19. You have 30 days to appeal.

S. THURAIRAJA
JUDGE

At Labasa
26 August 2010