State v Lal [2011] FJHC 202; HAC061.2009S (4 April 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 061 OF 2009S

THE STATE

V

1. BHARAT LAL
2. JAYANT LAL
3. MOREEN LATA PRAKASH

Counsels: Ms. S. Tagivakatini and Ms. P. Low for the State
Mr. R. Chaudhry for Accused No. 1
Ms. M. Savou for Accused No. 2
Mr. I. Khan for Accused No. 3
Hearings: 3rd to 28th February, 1st to 4th March, 2011
Summing Up: 9th March, 2011
Judgment: 9th March, 2011
Sentence: 4th April, 2011

SENTENCE

1. The three of you were tried for approximately 20 days between 3rd February and 4th March 2011, for murdering Shalesh Prakash on 21st June 2009, at Sawani in the Central Division. On 9th March 2011, the three assessors unanimously found the three of you guilty of murder, and the court agreed with their view. The court found you guilty as charged, and convicted you accordingly.

2. The facts of your case were quite disturbing. It showed how evil in human beings can destroy the happiness in the lives of two young families. Bharat Lal, you were happily married to Kamini Devi, with 2 young children. You and your young family happily lived in Salato Road, Namadi Heights. Moreen Lata Prakash, you were also happily married to Shalesh Parkash, the deceased. You and your husband had two young children, and your family happily lived at Dadakulaci Road, Nadawa.

3. After working together in a real estate company in Suva, Bharat Lal, you met Moreen Lata Prakash in September 2008. You began to have an affair with her. Your relationship continued until June 2009, wherein the two of you went to New Zealand for a holiday. On your return, the two of you were very much in love. You two began to plan the death of Shalesh Prakash, so that you two could live together forever, as husband and wife.

4. Moreen Lata, in the comfort of your marital home, and unbeknown to your unsuspecting husband, you began to plan his death, with the help of Bharat Lal. You mixed dhatora plants powder in his rum to make him extremely drunk. On two occasions, with the help of Bharat Lal, you tried to drown your husband in the Suva Harbour, by pushing him off the sea wall. You knew that he could not swim. However, you two's plan failed because Bharat Lal had "cold turkey".

5. Then on 20th June 2009, Moreen Lata, with the help of Bharat Lal, you mixed dhatora plant powder in your husband's rum. He drank the same later that evening. He got so drunk he couldn't remember anything. Bharat Lal, you then rang Jayant Lal, your nephew, to assist you kill Shalesh Prakash. You promised him $1,000 plus, as a reward. Being loyal to you, Jayant Lal came.

6. The two of you took Shalesh Prakash in his company car from his home to Sawani- Serea Road. Jayant Lal was driving the car, while you Bharat Lal was issuing instructions. Moreen Lata, you were in contact with them, through your mobile phone, to ensure they killed your husband. The whole three of you were working together as a group to kill Shalesh Prakash. Unbeknown to him, he was being led to his death, by the three of you. Jayant Lal, you then drove Shalesh's company van over him twice. On your first hit, he broke his leg, and was sitting on the Sawani- Serea Road severely injured. On your second attempt to drive the van over him, he tried to get up to avoid you, but he couldn't, and you ran the van over him. He then died, lying in a pool of blood, with his eyes open. Bharat Lal, you were in the van, with Jayant Lal, and Moreen, you were in contact with them through your mobile phone. Your group act was nothing, but "cold blooded killing", and for this, you must certainly pay with the loss of your liberties.

7. There is only one mandatory sentence for murder, and that is life imprisonment. However, pursuant to section 18(1) of the Sentencing and Penalties Decree 2009, the court must "fix a period during which the offender is not eligible to be released on parole". Prior to the repeal of the Penal Code on 1st February 2010, the "non- parole period" was often termed the "minimum period" the prisoner must serve, before being eligible for parole.

8. Cases on murder differ on the imposition of "minimum terms" or "non-parole" periods. In Waisale Waqanivalu v The State, Criminal Appeal No. CAV 005 of 2007, Supreme Court, on 5 counts of murder and 1 attempted murder, the prisoner was given 19 years minimum on each murder count, and 10 years consecutive on a pending prison sentence, bringing the total minimum period to approximately 26 years imprisonment. In The State v Raymond Singh, Criminal Case No. HAC 072 of 2008, Suva, 18 years was the minimum period. In State v Kaliova Rasaku and Netani Momoivalu, Criminal Case No. 136 of 2007, Lautoka, the minimum period for Rasaku was 7½ years and Momoivalu was 5½ years. It would appear that when the murder was gruesome, the "minimum period or non-parole period" was high.

9. In this case, I take into account that you were all first offenders. Bharat Lal, you are married with two young kids. Likewise, Moreen Lata, you were married with two young children. Jayant Lal, you were newly wed with a 10 month old son. All your characters were unblemished before the 21st June 2009. In Moreen Lata's case, you did some charity work in the Nadawa area, for flood and hurricane victims. You have strong family support, prior to and after the 21st June 2009. You have all spent time in custody, while awaiting trial – more so in Bharat Lal's case. These mitigating factors will be taken into account.

10. However, the law recognized that the preservation of a human life is of the utmost importance and those who unnecessarily take it away, must pay with the loss of their liberty. A murder is no "robbery with violence", and as such, the penalty must always be high. The penalty must show the public's outrage at those who belittle human life. It must also act as a deterrence against those who find themselves in similar situations, and are contemplating repeating what occurred in this case. Bharat Lal, Jayant Lal and Moreen Lala Prakash, what you did to Shalesh Prakash on 21st June 2009 was unfair, cowardly and the height of evil.

11. I sentence each of you to life imprisonment for murdering Shalesh Prakash on 21st June 2009, and each of you are not eligible for parole until you've served 20 years imprisonment.

Salesi Temo
ACTING JUDGE

Solicitors for the State : Office of Director of Public Prosecution, Suva.
Solicitors for Accused No. 1 : Gordon & Chaudhry Lawyers, Suva.
Solicitors for Accused No. 2 : Legal Aid Commission, Suva.
Solicitors for Accused No. 3 : I. Khan & Associates, Lautoka.