State v Chand - Sentence [2012] FJHC 972; HAC032.2005 (22 March 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 032 OF 2005

BETWEEN:

STATE

AND:

ASHWIN CHAND

Counsels : Ms. L. Vateitei for the State
Accused In person

Date of Trial : 05/03/2012 to 09/03/2012.
Date of Summing Up: 13/03/2012.
Date of Judgment : 14/03/2012.
Date of Hearing : 15/3/12 and 21/3/12
Date of Sentencing : 22/3/12

SENTENCE

1. The Director of Public Prosecution had preferred a charge of murder punishable under Section 199 & 200 of the Penal Code against the Accused above named.

2. After the trial all three assessors unanimously found the Accused guilty for the offence of murder.

3. After carefully considering all evidence and the verdict of the Assessors this Court found the Accused guilty to the charge of murder and convicted him accordingly.

4. You Ashwin Chand stand convicted for murder punishable under Section 200 of the Penal Code (Cap 17).

5. Section 200 of the Penal Code states as follows:

"Any person convicted of murder shall be sentenced to imprisonment for life."

6. According to the above Section the only sentence the Court could impose is life imprisonment. Accordingly I sentence you to life imprisonment.

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

"(1) Subject to sub-section (2), when a court sentences an offender to be

imprisoned for life or for a term of 2 years or more the court must fix a period during which the offender is not eligible to be released on parole."

8. Both the State and the Accused were invited to make their oral and written submissions regarding the sentence. Further the Accused was given opportunity to give evidence and to call witnesses on his behalf. State Counsel filed written submissions. The Accused made oral submissions in Court.

9. The evidence before the Court reveals that the Deceased Premila Wati is a mother of two small children. She had received about 7 injuries. The Post Mortem Examination Report reveals that the Deceased had the following injuries:

1. One deep cut injury on the neck virtually severing the neck;

2. 4 stab wounds on the middle of the chest;

3. Abrasions on the back of the chest.

10. Considering the nature of the injuries, this Court observed that those injuries were caused in a inhuman way, the assailant had taken his time to cut the throat up to the cervical spinal column. The stab injuries on the chest also show that the assailant purposely and willfully caused with certain vengeance.

11. The State Counsel submits the Accused deserves a maximum non Parole Period.

12. The Accused submits that he is 34 years old, his sentence should be backdated to 2006 and he should be given 12 years non Parole Period.

13. The State Counsel submits that the Accused has 56 Previous Convictions. The Accused also admits of this record. State Counsel moves Court to declare the Accused as a habitual offender.

14. I consider Section 10 & 11 of the Sentencing and Penalties Decree.

Section 10 states as follows:

"This Part applies to a court when sentencing a person determined under section 11 to be a habitual offender for –

(a) a sexual offence;

(b) offences involving violence;

(c ) offences involving robbery or housebreaking;

(d) a serious drug offence; or

(e) an arson offence.

Determining a person to be a habitual offender

Section 11:

1. A judge may determine that an offender is a habitual offender for the purposes of this Part –

(a) when sentencing the offender for an offence or offences of the nature described in section 10;

(b) having regard to the offender's previous convictions for offences of a like nature committed inside or outside Fiji, and

(c ) if the court is satisfied that the offender constitutes a threat to the community.

15. I find, there are about 15 previous convictions out of 37 convictions within operational period falls within the ambit of above section. Considering the previous convictions I am convinced that the Accused Ashwin Chand constitute threat to the Community, therefore I find the Accused is fit and proper person to declare as a habitual offender. I act under Section 11 declare Ashwin Chand as a habitual offender.

16. In State v Linjun (2003) HAC 2/03S Gates J (as then) decided 17 years as non parole period.

17. In State v Eparama Niume and two others HAC 010 of 2010 Justice Priyantha Fernando had imposed 25 years as non parole period in a similar murder case.

18. I am mindful of Section 4 of the Sentencing and Penalties Decree.

(a) Punishing offenders to an extent and in a manner which is just in all the circumstances;

(b) Protecting the community from offenders;

(c ) Deterring offenders or other persons from committing offences of the same or similar nature;

(e) Signifying that the court and the community denounce the commission of such offence; or

(f) Any combination of these purposes.

1.0 In sentencing an offender, a court must have regard to:

(a) The maximum penalty prescribed for the offence;

(b) Current sentencing practice and the terms of any applicable guideline judgment;

(c ) The nature and gravity of the particular offence;

(d) The offender's culpability and degree of responsibility for the offence;

(e) The impact of the offence on any victim of the offence and the injury, loss or damage resulting from the offence;

(f) 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;

(g) The conduct of the offender during the trial as an indication of remorse or the lack of remorse;

(h) 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;

(i) The offender's previous character;

(j) The presence of any aggravating or mitigating factor

concerning the offender or any other circumstance relevant to the commission of the offence; and

(k) Any matter stated in this Decree as being grounds for

applying a particular sentencing option.

19. Considering the way the murder is committed and the protection of the community at large, I act under Section 18(1) of the Sentencing & Penalties Decree and I impose Ashwin Chand Life Imprisonment with 22 years of Non Parole Period. This sentence will come into force from today, 22nd March 2012.

20. 30 days to appeal to the Court of Appeal.

S. Thurairaja
JUDGE

At Lautoka
22 March 2012