State v Shahim [2013] FJHC 14; HAC13.2012 (18 January 2013)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

Criminal Case No: HAC 13 of 2012

BETWEEN:

THE STATE

AND:

MOHAMMED SHAHIM

Counsel: Mr. S. Vodokisolomone for State
Ms M. Lemaki for Accused

Date of Hearing: 15-16 January 2013
Date of Sentence: 18 January 2013

SENTENCE

[1] Mohammed Shahim (the Accused) is charged with murder of Tarunesh Nair contrary to section 237 of the Crimes Decree No. 44 of 2009. On 15 January 2013, the Accused relayed to the Court his intention to plead guilty to the charge. Since murder is punishable by life imprisonment, I adjourned overnight to allow the Accused to carefully consider his decision to plead guilty to the charge.

[2] On 16 January 2013, when the Accused appeared before the Court, he maintained his plea of guilty to murder. The information was read and translated in Hindi language. Facts tendered by the State were also translated in Hindi language. The Accused told the Court that he understood the charge and that his plea was guilty.

[3] After listening to the Accused and his counsel, I am satisfied that the Accused freely and voluntarily entered his guilty plea and that he competently waived his right to a trial. Facts admitted by the Accused support his plea of guilty to murder.

[4] The Court accepts the guilty plea and convicts the Accused for the murder of Tarunesh Nair on 27 January 2012 at Naduna, Labasa.

[5] The circumstances in which the deceased died are unfortunate. The deceased was a 5-year old boy. In August 2011, the Accused's wife invited the deceased's mother to live with her family after learning of her plight when she got separated from her husband. The two women knew each from the Labasa market where they sold vegetables and sweets for a living.

[6] While living under one roof, the two families got on well except for minor disagreement over the deceased not being properly looked after by his mother. There is some evidence that the deceased was a sickly child. On most occasions, the Accused took care of the deceased and his five children aged between one to fifteen years whenever his wife left home to earn a living to support the family. The Accused's eldest son has a speech disability. They live in a two-bedroom house made of corrugated iron and timber. The land on which they live does not belong to them. A school teacher has allowed them to build and reside on his land free of rent. His wife earns about $30.00 a week by selling sweets at the Labasa market. A faith based charitable organization gives them $30.00 a month for living expenses.
[7] The family has no government supply water or electricity. Drinking water is borrowed from neigbours. For washing and bathing, the family uses a nearby creek. One would think that all citizens of this country should have at least the basic necessity of life, that is, safe drinking water available to them by the government.

[8] The Accused's wife told this Court that they were refused social welfare benefits because she could not provide marriage and birth certificates to the Department of Social Welfare. She said she could not afford to get her children registered with the Registrar of Birth. The Court has some empathy for her and her five children, now that her husband is going to be sentenced for murder. There is no doubt that this family is living in extreme poverty. I direct the Court Registry to forward a copy of this sentence to the Department of Social Welfare and Save the Children Fiji, with the view of providing the children with some financial assistance.

[9] On the day the deceased died, that is, 27 January 2012, he was left under the care of the Accused. Apparently, the deceased was sick and had not eaten for a few days. His mother had accompanied the Accused's wife to the Labasa market.

[10] After bathing the deceased, the Accused offered him fresh coconut to drink. The deceased refused to drink the coconut water. Instead he asked the Accused for food. Since there was no food in the house, the Accused asked the deceased again that he drink the coconut water. The deceased insisted for food and started crying aloud. At this point, the Accused snapped and punched the deceased several times on his chest and stomach. The deceased lost his consciousness. The Accused got one of his sons to revive the deceased. When the deceased did not respond, the Accused told his son to lie, that the deceased had fallen from the settee and died.

[11] The Accused immediately contacted the deceased's mother. When she arrived home, she saw her son was already dead. She noticed bruises on her son's body. The matter was reported to the police. The Accused made a full confession to the police under caution.

[12] Post-mortem examination revealed that the deceased was an average nourished child. The post-mortem report noted the following marks of violence on the child:

Multiple contusions in the upper part of the neck and on the sides of the neck. A single curved laceration on the left side of the neck, below the mandible.

Multiple contusions in the skin with haematoma over the lower anterior chest wall and upper abdomen.

[13] The child died of shock due to excessive loss of blood in peritoneal cavity and ruptured head of pancreas. The pathologist noted that the child's airways were filled with white mucus.

[14] The timing of the guilty plea is relevant in assessing whether the Accused is genuinely contrite. The Accused pleaded guilty before a trial date could be fixed. When considered together with his confession to the police, I feel he is genuinely contrite for his actions. I accept the Accused did not intend to kill. I think the Accused was reckless when he assaulted the deceased knowing the child was vulnerable due to his age and illness. He must have realized that punching a sickly 5-year old child several times on his chest and abdomen could cause death.

[15] The Accused allowed his frustrations to dictate his decision to assault the deceased when he insisted for food when there was none in the house. The Accused himself is of a small stature and a frail man when compared to an average Fijian. There is no evidence that the Accused is a violent man or not a responsible parent. He is 45 years old and is a man of previous good character. The Accused had two eye surgeries. A third surgery was due last year. His eye sight is likely to grow weaker if the surgery is not done.

[16] Counsel for the State has referred to two cases for guidance for setting of a minimum term. In State v Sharma [2010] FJHC 293; HAC091.2009S (12 August 2010), the accused pleaded guilty to killing his 8-year old son by suffocating him with a piece of cloth. The accused was frustrated and depressed when his wife abandoned his son for another relationship. Temo J sentenced him to a life imprisonment with a minimum term of 13 years to serve.

[17] In Cevakibau v the State [2006] FJCA 52; AAU007.2005S (28 July 2006), the Court of Appeal upheld a minimum term of 13 years imposed on a father, after a trial, who murdered his 6-year old daughter by severely beating and kicking her.

[18] Clearly, the circumstances of murder in this case are different from Sharma's case and Cevakibau's case. A minimum term of 11 years is appropriate in all circumstances of this case. However, the Accused has been in custody on remand for a year. A downward adjustment has to be made to reflect the remand period.

[19] The Accused is sentenced to a life imprisonment with a minimum term of 10 years to serve.

Daniel Goundar
JUDGE

At Labasa
18 January 2013

Solicitors:
Office of the Director of Public Prosecutions, Labasa for the State
Legal Aid Commission, Labasa for the Accused