State v Kaur - Sentence [2016] FJHC 500; HAC192.2015 (3 June 2016)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 192 OF 2015

STATE

vs

1. SUNDAR KAUR

2. GEETA DEVI

Counsel : Ms. Fatiaki for State

S. Ratu for Accused

Hearings : 26^th May, 2016
Sentence : 03^rdJune, 2016

SENTENCE

1. Ms.SUNDAR KAUR, you, the 1^st Accused on 5^th February, 2016, in the presence of your counsel, pleaded guilty to the count of Murder in the following information:
   

Statement of Offence

MURDER: Contrary to section 237 of the Crimes Decree 44 of 2009.

Particulars of Offence

SundarKaurandGeeta Devi on the 1^st of November 2015 at Sigatoka in the Western Division murdered Sanjani Lata.

2. You were explained the consequence of the guilty plea. Your Counsel confirmed that you understood the consequence and that you tendered your plea on your own free will. The Court accepted your plea after being satisfied that it was unequivocal, voluntary and free from any influence.
   
3. On the 23^rd March 2016, amended summary of facts filed by the State was read over to you. You agreed the facts filed by the State. Court found that all the elements of offence of Murder were proved on the facts agreed by you. Youwere convicted of the charge of Murder accordingly. You now come before this Court for sentence on the conviction.
4. On 14^th April 2016, following summary of facts was read in court:

The accused is the biological mother of the deceased.

The deceased lived with the accused and her siblings in two bedroomed house at Kulukulu in Sigatoka.

On Sunday the 1^st of November 2015 sometime in the morning the accused and the deceased were in one of the bedrooms at their home in Kulukulu. The accused in an attempt to discipline the deceased had bound the deceased’s hands with a blue cloth which was tied to a wooden rafter attached to the tin roof above the bed.

In order to prevent the deceased from kicking her, the accused also bound the deceased’s legs with a rope and tied the rope to the edge of the bed.

The deceased was crying out loudly.

The accused then repeatedly struck the deceased on the lower half of her body with an aluminium pipe which was used as a mop stick.

The deceased continued crying and despite that, the accused continued beating her. The accused whilst beating the deceased with the aluminium pipe knew that there was a risk that such action would cause the deceased’s death but continued to do so anyway.

The accused whilst striking the deceased after sometime noticed that the deceased’s legs were bent and she appeared to be ‘hanging’. With the assistance of her accomplice, the blue cloth which was attached to the rafter was cut, and the rope around the deceased’s legs removed. As this was done the deceased fell and the accused tried to hold her up.

The deceased was then carried by the accused’s accomplice to the bathroom where they tried to make the deceased drink water. The deceased was motionless. At this point in time it was found that the deceased was not breathing. It was the beating inflicted by the accused that caused the deceased’s death.

The deceased was then taken outside where the accused tried to resuscitate her by blowing into her mouth.

The accused then instructed her accomplice to bring an old tyre which would be used to burn the deceased’s body along with firewood and coconut shells which was in a heap at the back of their home.

The accused with the assistance of her accomplice then wrapped the deceased’s body in a thin sponge comforter and placed it in the heap.

The accused then set fire to the tyre and the thin sponge comforter with the deceased’s body in it.

After the fire had subsided, the deceased’s remains were collected and placed in the septic tank behind their home.

Police got information about the incident and investigated.

The accused was taken into custody and interviewed under caution. She was then charged with one count of Murder.

On the 5^th of February 2016, the accused whilst being represented by Counsel from the Legal Aid Commission voluntarily pleaded guilty to the said charge

5. The offence of "murder" is the most heinous crime known to the penal law. Lawmakers had prescribed a mandatory penalty of life imprisonment for those found guilty of Murder. The court is empowered "to set a minimum term to be served before a pardon may be considered".
   
6. I considered the manner and the circumstances under which you committed this offence on your own daughter. I also considered the sentencing submissions filed by the State and your Counsel.
   
7. You subjected your daughter to prolonged brutality and suffering. Her leg and hands were tied to restrict her movements. You repeatedly struck her with an aluminum pipe while she was crying.
   
8. You breached the trust as a mother and betrayed the motherhood. This offence is no doubt violated Domestic Violence Decree.
   
9. Your daughter was only 14 years. She was utterly helpless and you exploited her vulnerability.
   
10. You took every effort to conceal the brutal crime with the assistance of your daughter- in- law.
    
11. Your Counsel has filedsubmission in mitigation. You are 45 years old and handicapped with one leg.
    
12. You do not have any record of previous convictions. Your previous good character will be considered when setting the minimum term of imprisonment.
    

13. You have been remorseful after the commission of this crime and seek forgiveness.

14. You pleaded guilty to the charge at the earliest available opportunity without wasting time of this Court.

15. You have been in remanded since 19^th of November 2015.

16. The Courthas no option but impose life imprisonment. I therefore sentence you to life imprisonment. Having considered the culpability of the offending, aggravating and mitigating circumstances, I fix the minimum term to be served as 14 years, before a pardon may be considered.
    

SENTENCE FOR 2^nd ACCUSED GEETA DEVI

17. Ms. GEETA DEVI, you, the 2^nd Accused on 5^th February, 2016, in the presence of your Counsel, pleaded guilty to the count of Giving False Information to a Public Servant in the following information:
    

Statement of Offence

GIVING FALSE INFORMATION TO A PUBLIC SERVANT: Contrary to Section 201 (a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

GEETA DEVI on the 1^st of November 2015, at Sigatoka, in the Western Division, gave false information to SC NetevaRasila, a public servant, which she knew to be false.

18. You were explained the consequence of the guilty plea. Your Counsel confirmed that you understood the consequence and that you tendered your plea on your own free will. The Court accepted your plea after being satisfied that it was unequivocal, voluntary and free from any influence.
19. On the 23^rd March 2016, amended summary of facts filed by the State was read over to you. You agreed the facts filed by the State. Court found that all the elements of the offence of GIVING FALSE INFORMATION TO A PUBLIC SERVANT were proved on the facts agreed by you. You were convicted of the charge accordingly. You now come before this Court for sentence on the conviction.
    

20. On 14^th April 2016, following summary of facts was read in court:

The accused is the deceased’s sister-in-law.

The deceased lived with her mother, the accused and her siblings in a two bedroom house at KulukuluSigatoka.

On the 1^st of November 2015 at around 1.30 pm the accused together with Mohammed Faizal Ali went to the Kulukulu Police Post.

There she lodged a report to Special Constable NetavaRasila, a person employed in the public service by the Fiji Police Force that one Sanjini Lata of KulukuluSigatoka had gone missing from home despite knowing that the information she gave to Special Constable Rasila was not true.

On her way back from the Police Post the accused admitted to Mohammed Faizal Ali that whatever she had told Special Constable NetavaRasila was false.

Police received information about the incident and investigated.

The accused was taken into custody and interviewed under caution. She was then charged with one count of Giving False Information to a Public Servant.

On the 5^th of February 2016, the accused whilst being represented by Counsel from the Legal Aid Commission voluntarily pleaded guilty to the said charge.

21. The maximum penalty for the offence of Giving False Information to a Public Servant is 5 years’ imprisonment.
    
22. In MuskanBalaban v State Criminal Appeal No. 31 of 2011, Justice D. Gounder affirmed the starting point of 2 years and having considered the aggravating and mitigating circumstances, fixed the final sentence at 18 months’ imprisonment. The accused in that matter had given false information to the effect that her Counsel had raped her.
    
23. In Fiji Independent Commission Against Corruption v Padarath [2016] FJMC 31 (9 March 2016) the accused pleaded guilty to the charge and was sentenced to 25 months’ imprisonment with a non-parole period of 16 months.
    
24. In this case you have given false information to police that your sister- in- law had gone missing from home despite knowing that the information was not true. These typesof offences should be discouraged and the sentence must send a clear waning to the society.
    
25. Your Counsel has filed submission in mitigation. You are 28 years old mother with two children.
    

26. You do not have any record of previous convictions.

27. You have been remorseful after the commission of this crime and seek forgiveness.

28. You pleaded guilty to the charge at the earliest available opportunity without wasting time of this Court.
    

29. You have been in remanded since 19^th of November 2015.

30. Having considered your mitigation submitted by your Counsel and the remand period you are sentenced to 16 months’ imprisonment with a non parole period of 10 months.
    
31. You have committed this offence to conceal the murder of your own sister-in-law for which you are jointly charged with. In these circumstances, you deserve an immediate custodial sentence. Therefore, I do not suspend your sentence.
    

Aruna Aluthge
Judge

AT LAUTOKA
03^rd June 2016

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