State v Kumar - Sentence [2012] FJHC 1102; HAC36.2010 (11 May 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 36 OF 2010

BETWEEN:

STATE

AND:

ASHIL KUMAR

Counsel : Ms S Puamau for State
Ms J. Nair for Accused

Date of Sentence : 11th May 2012

SENTENCE

1. The Director of Public Prosecution had preferred the following charge against the Accused above named.

Statement of Offence

MURDER: Contrary to section 237 of the Crimes Decree No. 44 of

2009.

Particulars of Offence

ASHNIL KUMAR on the 10th day of April 2010 at Nawaka settlement, Nadi in the Western Division murdered Mukesh Kumar

2. When the case was taken up for Trial the Accused through his Counsel informed the Court that he wants to plead guilty. Since the only punishment is life imprisonment, the Accused was informed of the consequences of the sentence and he was given time to re-consider his decision.

3. When the case was called on the following day the Accused informed the Court that after considering all circumstances he wants to plead guilty. Charge was read to the Accused then he pleaded guilty to the charge. His Counsel also confirmed the plea.

4. When the State Counsel submitted the summary of facts the Accused admitted to the same without any reservation.

According to the summary of facts the mother (Kiran Lata) of the Accused had an extra marital affair with the Deceased Mukesh Kumar who was the step brother of her husband. On the fateful day, the Accused who was working as a driver at a tourist Bus Company had come home to take his jacket. In the mean time, the mother Kiran Lata sneaked her Deceased paramour and involved with him at the bedroom. On hearing the Accused coming home the deceased hid himself under the bed. The Accused bend under the bed to retrieve a carton to get his jacket had seen the deceased under the bed. Both were involved in a physical altercation and the Accused had attacked the deceased with a knife. The deceased succumbed to his injuries. Witnesses to the incident are the mother, sister and brother of the Accused.

5. Being convinced with the plea of the Accused to be unequivocal, I found the Accused guilty and convicted him for the charge of Murder punishable under section 237 of the Crimes Decree.

6. According to the law the only punishment which can be imposed is imprisonment for life. Accordingly, I sentence you for life imprisonment.

7. Section 18 (1) of the Sentencing and Penalties Decree states as follows:

"Subject to subsection (2), when a court sentences an offender to be imprisoned for life or for a term of two years or more the court must fix a period during which the offender is not eligible to be released on parole."

8. According to section 18(1) this Court consider following factors before fixing a non parole period.

9. In R v Kear 91978) 2 Crim LJ 40, Wells J. said:
   

"The principal question which a judge must .pose for himself is: "What should be the purpose or purposes of any order that I make, having regard to all the circumstances of the case?"

In the span of centuries during which judges have been sentencing, the possible purposes that have, again and again, presented themselves to Judicial minds, and that jostle one another in their endeavors to gain paramountcy are (1) to deter; (2) to prevent; (3) to reform, or in modern, parlance, to rehabilitate; (4) to exact retribution.... The purpose of deterring the offender and any others who may be disposed to commit similar offences must plainly weigh heavily in the deliberations of a judge who is to impose a sentence for a serious crime".

10. However in R v Barnett (11993) 70 A Criminal 469 at 475 Coldrey J said as edited by Wilson J in State v Silatolu and Nata [2003] FJHC 239; HAC 011 OF 2007 (27 June 2003):

"What the courts may regard as constituting the appropriate sentence for any criminal offence will, at any period of (sic-point in ) time, be influenced by the intent of Parliament expressed for example, in the enactment of increase [I would add, "or decreased] penalties and by the judicial perception of community concern at the prevalence of certain offences and the seriousness with which community [I would add, " as represented by its members of Parliament'] regards such offences. These factors must necessarily operate within the content of general sentencing principles which reflect other community expectations including rehabilitation] I would add" and notions of restorative justice or reconciliation"].

11. The accused is a 1st offender.

12. The Accused is 22 years and young offender at the time of the murder.

13. By pleading guilty the Accused not only saved the time of the Court but also avoided the psychological trauma of his family members.

14. The Accused is not married but support his father financially to meet the ends of family needs.

15. Character evidence brought by the Accused revealed that he is a religious and lovable youth of the family and society.

16. The Accused submits that this had happened due to anger and not pre-meditated.

17. The Accused submits that he is regretting the murder and apologized to the family members.

18. Section 4(1) states as follows:

The only purposes for which sentencing may be imposed by a court are:

1. To punish offenders to an extent and in a manner which is just in all the circumstances;
   
2. To protect the community from offenders;
   

100. To deter offender or other person form committing offences of the same or similar nature;
     

4. To establish conditions so that rehabilitation of offenders may be promoted or facilitated;
   
5. To signify that the court and the community denounce the commission of such offences; or
   
6. Any combination of these purposes.
   

19. Section 4(2) states as follows:

In sentencing offenders;

1. The maximum penalty prescribed for the offence;
   
2. Current sentencing practice and the terms of any applicable guideline judgment;
   

100. The nature and gravity of the particular offence;
     

4. The offenders culpability and degree of responsibility for the offence;
   
5. The impact of the offence on any victim of the offence and the injury,loss or damage resulting from the offence;
   
6. Whether the offender pleaded guilty to the offence, and if so, the stage in the proceedings at which the offender did so or indicated an intention to do so;
   
7. The conduct of the offender during the trial as an indication of remorse or the lack of remorse;
   
8. Any action taken by the offender to make restitution for the injury, loss or damage arising from the offence, including his or her willingness to comply with any order for restitution that a court may consider under this Decree;
   
9. The offender's previous character;
   
10. The presence of any aggravating or mitigating factor concerning the offender or any other circumstances relevant to the commission of the offence;
    
11. Any matter stated in this decree as being grounds for applying a particular sentencing option.
    

20. Considering all, I find that the Accused deserves another chance in his life. I act under section 18(1) and fix the non parole period as 4 years.

21. I must place it on record the assistance rendered by the State Counsel Ms Seini Puamau in maintaining the highest tradition of the Office of Director of Public Prosecution, she made a very fair and useful submissions in this case.

22. Ashil Kumar you are sentenced for life imprisonment with non parole period of 4 years. That means you will not be released during the non parole period, after the period the relevant authorities may consider your release.

23. You have 30 days to appeal to the Court of Appeal.

S. Thurairaja
Judge

At Lautoka
11th May, 2012

Solicitors : The Office of the Director of Public Prosecution for State
Legal Aid Commission for the Accused