State v Ali - Sentence [2015] FJHC 152; HAC87.2013 (5 March 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 87 2013

STATE

V

AIYAZ ALI

Counsels : Mr. Josaia B Niudamufor the state
Mr. Iqbal Khan for the accused

Date of Sentence : 5 March 2015

SENTENCE

1. You are charged as follows:
   

FIRST COUNT
Statement of Offence

ATTEMPTED MURDER: Contrary to Section 44 and 237of the Crimes Decree No.44 of 2009.

Particulars of the offence

AIYAZ ALI on the 18th day of April, 2013 at Nadi in the Western Division, attempted to murder PRITIKA KUMARI by striking her with a cane knife.

2. You pleaded Not Guilty to the charge on 5th September 2013 when the plea was taken for the first time. You were on bench warrant since 11.10.2013 to 15. 7.2014. When the case was to be taken up for voir-dire inquiry on 10.11.2014, you pleaded Guilty to the above charge and admitted the summary of facts same day and was convicted of the above charge.
   
3. The summary of facts are as follows:
   

On the 18th of April, 2013 (Thursday) at about 5 pm at Nacovi, Nadi, Aiyaz Ali (Accused) (28 years old, self-employed, resides in Nacovi, Nadi) attempted to kill PritikaKumari (Complainant) (27 years old, Domestic Duties) by striking her with a cane knife. They are in a de-facto relationship.

On the above date, time and place, PritikaKumari went to serve a Domestic Violence Restraining Order on the accused. She was accompanied by Police Constable Number 3792 EtuateNasova (PW-2) of Nadi Police Station in a private 7 seated vehicle which was driven by Arunesh Kumar (PW-3). The accused received the domestic violence restraining order and acknowledged receipt by signing the document. He was outside the house with Police Constable Etuate when PritikaKumari went inside the house to pack her clothes.

The accused then went inside the house and locked the front door. The accused picked up a cane knife which was in the sitting room and started striking PritikaKumari saying in Hindustani "AAJ TUMME HUM KHATAM KARDEGA" meaning "I WILL FINISH YOU TODAY". PritikaKumari was struck on the head and right arm. She shouted for help and then fell on the floor. PritikaKumari was then taken to Nadi Hospital and later transferred to Lautoka Hospital.

The accused was arrested after the incident by Police Constable No. 3792 EtuateNasova with the assistance of WPC. 3888 Mereani. He was taken to Nadi Police Station and was caution interviewed by Acting Detective Corporal 2109 Anil Kumar whereby the accused admitted striking the complainant with a cane knife. Subsequently, the accused was charged for one count of attempted murder contrary to Section 44 and 237 of the Crimes Decree No. 44 of 2009.

4. Then you changed the counsel and filed papers to vacate the Guilty plea. In HAM 271/2014 this Court decided that your plea is unequivocal.
   
5. The mandatory sentence fixed by law for Attempted Murder is that the convicted person shall be sentenced to imprisonment for life. There is no discretion allowed to the court in a murder case to sentence to a lesser term.
   
6. It is well known that convicted persons sentenced to life imprisonment usually do not serve the full term, that is serve imprisonment for the rest of their lives.
   
7. Both parties have filed detail submissions on the sentence. I have carefully considered those submissions and the case authorities submitted by both parties on setting a minimum period.

8. In State v Babodu0; [201 [2012] FJHC 9JHC 981; HAC145.2010 (21 March 2012) Hon. Mr. Justice S. Temo accepted a tariff of 8-11 years as the nrole d for attempted murder.

9. Aggravating factors:
   
   • (i) Use of a weapon
   • (ii) Nature of injuries on the complainant
   • (iii) The relationship between you and the complainant
     
10. Mitigating circumstances:
    
    • (i) You are 28 years old and therefore young offender
    • (ii) Although late, you pleaded Guilty to the charge and avoided the complainant giving evidence
    • (iii) You were in remand from 22.4.2013 to 20.6.2013 for a period of 2 months and from 30.6.2014 up to date for a period of 8 months. Thus the total period in remand is 10 months.
      
11. After weighing the aggravating factors against the mitigating circumstances of this case, I fix a non-parole period of 7 years acting under Section 18 (1) of the Sentencing and Penalties Decree.This non-parole period is outside the tariff but after consideration of the time period in remand and the Guilty plea separately this period is justified.
    
12. Having considered the Domestic nature of the relationship you had with the victim, I order a permanent Domestic Violence Restraining Order (DVRO) in place, identifying victim PritikaKumari as the protected person. You are hereby ordered not to have any contact with the victim directly or by any other means, unless otherwise directed by this Court.
    
13. Therefore you are sentenced for life imprisonment and not eligible for parole till completing 7 years imprisonment.
    
14. 30 days to appeal to Court of Appeal.
    

Sudharshana De Silva
JUDGE

At Lautoka
5th March 2015

Solicitors : IqbalKhan & Associates for the Accused
Office of the Director of Public Prosecutions for the State