State v Prasad [2016] FJHC 96; HAC80.2014 (15 February 2016)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 80 OF 2014

STATE

-v-

NEETIN AJESH PRASAD

Counsel : Mr. S. Nath for the State
Mr. W. Pillay for the Accused

Date of Judgment : 2nd February, 2016
Date of Hearing : 10th February, 2016
Date of Sentence : 15th February, 2016

SENTENCE

INTRODUCTION

1. Mr. Neetin Ajesh Prasad (herein after referred to as the Accused), now stands convicted after trial. Accused was charged with Attempt to Commit Murder, contrary Section 44 (1) read with Section 237 of the Crimes Decree 44 of 2009.
   
2. Assessors unanimously found the Accused guilty of alternative lessor count of Act with Intent to Cause Grievous Harm. Disagreeing with the opinion of the Assessors, Court found the Accused guilty of Attempt to Commit Murder as charged.
   
3. A person who attempts to commit an offence is guilty of the offence attempting to commit that offence and is punishable as if the offence attempted, had been committed. Accordingly, a person who is convicted of Attempt to Commit Murder is liable to be punished as if he or she had committed Murder. For Murder, the penalty is a mandatory sentence of life imprisonment, with a judicial discretion to set a minimum term to be served before pardon may be considered.
   
4. Despite the sentence being the same, there are critical differences between Murder and Attempted Murder; not only is the intended result not achieved but also, for Attempted Murder, there must have been an intention to kill whereas a charge of Murder may arise where the Accused knew what he was doing would cause death or very serious harm. In a case of Murder, a valuable human life is lost whereas in an attempt to commit murder the unlawful act would not have resulted in even a slightest injury to the person targeted.
   
5. The sentencing scheme of the Crimes Decree 44 of 2009 does not appreciate these differences and provides for mandatory life imprisonment to a convict of an Attempted Murder on par with the sentence for the principal offence, Murder. In many jurisdictions, offence of Attempted Murder is treated differently and attracts less severe punishment than that prescribed for Murder. The Sentencing Guidelines Council of the UK, for example, has taken a concerted decision to revisit the previous guidance from the Court of Appeal in Ford [2005] EWCA Crim 1358 and other Judgments and has published, in 2009, a separate definitive guideline for offences of assault such as Attempted Murder which do not result in the death of the victim.
   
6. The other concern in Fiji is the wide discretion given to judges to select a minimum term in a case that involves a mandatory sentence of life imprisonment. Sentencing discretion without proper guidance can be detrimental to the uniformity of the sentencing policy and the judicial accountability expected of judges in the sentencing process.
   
7. Despite the presence of a statutory framework in the repealed Penal Code and the present Crimes Decree applicable to sentencing in Attempted Murder cases, Judges in Fiji, having recognized the level of culpability and the harm caused to the victim, have taken a progressive approach and handed down fixed prison terms and also tried to set a distinct sentencing tariff that would proportionately reflect the seriousness of the offence. However, there is no widely recognized tariff band for Attempted Murder in Fiji nor is comprehensive guidance provided by case law to identify the levels of seriousness, starting points and, aggravating and mitigating circumstances as has been done by the UK Sentencing Guideline Council. Therefore, it is high time that judges in Fiji adopt a comprehensive sentencing structure in line with the UK sentencing guidelines for the offence of Attempted Murder that would promote uniformity and judicial accountability.
   
8. With that objective in mind, I expressed my aspiration and the Counsel of both parties have come up with good amount of research work, to which I am grateful, in their respective submissions.
   
9. Pursuant to Section 6 (1) of the Sentencing and Penalties Decree, this Court is not empowered to formulate a guideline judgment. However, this exercise would not be in vain if it can provide groundwork for Judges of appellate courts who will, in near future, be in the process of evolving a guideline judgment for the offence of Attempt to Commit Murder.
   
10. In formulating a comprehensive sentencing structure for the offence of Attempt to Commit Murder, this Court is mindful of the need to meet Fijian aspirations and also to conform to the sentencing pattern in Fiji in the past both under the Penal Code and the Decree.
    
11. First, I will be looking at the Definitive Guidelines provided for the offence of Attempted Murder by the Sentencing Guideline Council of the UK. Then, I will discuss the factual matrix of this case to identify both subjective and objective nature of the offending of the Accused. Then I will examine sentences that have been handed down in Fiji in similar cases. Finally, having had regard to definitive sentencing guidelines in the UK and aggravating and mitigating circumstances, I will settle the sentence to be imposed on the Accused that is best suited to the factual matrix of this case.
    

Applicability and Relevancy of UK Sentencing Guidelines in Fiji

12. Relevancy and applicability in Fiji of Sentencing Guidelines issued by the Sentencing Guidelines Council of the United Kingdom have been discussed by the Court of Appeal of Fiji in the case of Sharma v State [2015] FJCA 178; AAU48.2011 (3 December 2015). It was stated:
    

“It is appropriate to comment briefly on the approach to sentencing that has been adopted by sentencing courts in Fiji. The approach is regulated by the Sentencing and Penalties Decree 2009 (the Sentencing Decree). Section 4(2) of that Decree sets out the factors that a court must have regard to when sentencing an offender. The process that has been adopted by the courts is that recommended by the Sentencing Guidelines Council (UK). In England there is a statutory duty to have regard to the guidelines issued by the Council (R –v- Lee Oosthuizen [2009] EWCA Crim 1737; [2006] 1 Cr. App. R.(S.) 73). However, no such duty has been imposed on the courts in Fiji under the Sentencing Decree”.

13. The Court of Appeal of Fiji, in the aforementioned case, has recognized the applicability in Fiji of the sentencing process that has been recommended by the Sentencing Guidelines Council of the United Kingdom.
    

Definitive Guideline of the Sentencing Council Guideline of the UK

14. In 2009, Sentencing Guideline Council of the UK issued the follow definitive guideline for the offence of Attempted Murder. This guideline applies to the sentencing of offenders aged 18 and above and the starting point is set on the assumption that the offender has no previous convictions.
    

Nature of Offence	Starting Point	Sentencing Range
Level 1 The most serious offences including those which (if the charge had been murder) would come within para. 4 or para. 5 of schedule 21 to the Criminal Justice Act 2003. Serious and long term physical or psychological harm Some physical or psychological harm Little or no physical or psychological harm	30 years custody 20 years custody 15 years custody	27-35 years custody 17-25 years custody 12-20 years custody
Level 2 Other planned attempt to kill Serious and long term physical or psychological harm Some physical or psychological harm Little or no physical or psychological harm	20 years custody 15 years custody 10 years custody	17-25 years custody 12-20 years custody 7-15 years custody
Level 3 Other spontaneous attempt to kill Serious and long term physical or psychological harm Some physical or psychological harm Little or no physical or psychological harm	15 years custody 12 years custody 9 years custody	12-20 years custody 9-17 years custody 6-14 years custody

Factual Matrix

15. Accused is thirty-five-year-old father of two children. He is legally married to the victim. After a family feud, they got separated and lived separately. Children lived with the victim in her father’s house. She evaded him and stopped him from accessing two sons. Family Court case was pending where a Domestic Violence Restraining Order was sought against the accused. He suspected her for having an affair with her uncle’s son and came to know that he was going to accompany her to lodge a complaint with police for harassing her.
16. On the day of the incident, she did not answer the repeated phone calls. Then he visited her at her place. She did not want to talk to him. He got angry and struck at her thrice with a cane knife. He said to police that he was ‘out of mind’ and had no intention to strike her with the cane knife and kill her.
    
17. Doctor found 5 lacerations on her head and face including a 10 cm. laceration on the back of her head with an open fracture of the scull, multiple lacerations on both her hands, including the amputated ring finger. Doctor opined that the injuries caused to head and hands were intended to cause severe devastating effect and the possibility of death was evident.
    

Sentencing History for Attempt to Commit Murder in Fiji

18. In State v Laduva [2004] HAC 003/04 14 June 2004, the accused was sentenced to ten years’ imprisonment for attempting to murder his daughter with a bayonet. His Appeal against sentence to the Fiji Court of Appeal was dismissed.
    
19. In State v Swamy [2007] FJHC78; HAC 029S.06 929Novmber 2007), the accused pleaded guilty to three counts of Attempted Murder. Accused had struck his mother on the face, head and neck with a chopper and two others, in a premeditated attack. Citing the case of State v. Bobby Hemant Singh HAC 052 of 2007(L), where Winter J sentenced the accused, a 32-year-old man to 8 years’ imprisonment for trying to kill his de facto spouse in a premeditated attack by setting her on fire with kerosene and matches, Madam Justice Shameem took the starting point of 9 years and stated:
    

“Given the degree of premeditation, the use of dangerous weapon, the lasting injuries on the victims and the betrayal of trust, I arrive at 11 years imprisonment. I deduct 2 years for your guilty plea. I arrive at a sentence of 9 years imprisonment on each count. The total term would be excessive if I ordered consecutive terms. I therefore sentence you to 9 years imprisonment on each count to be served concurrently”

20. In Waqanivalu v State [2008] FJSC 44: CAV0005.2007 (27 February 2008), the Supreme Court refused special leave to appeal against the sentences of ten years’ imprisonment imposed by the High Court and affirmed by the Fiji Court of Appeal. The Appellant had been convicted for five counts of Murder and one count of Attempted Murder. For the Attempted Murder charge, he was sentenced to ten years’ imprisonment.
    
21. In State v Atik [2010] FJHC 199; HAC045.2009 (10 June 2010) Justice Madigan handed down a sentence of six years’ imprisonment to a convict who attempted to kill his de facto wife in a similar factual scenario. His Lordship, delivering his ruling described the factual matrix as follows:
    

“The facts revealed during trial show that on the 23rd June 2009 at Elevuka (Ba) you met your wife at a house she was renting. She had for some weeks prior to that been co-habiting with a younger man whom she had met by chance at the Lautoka bus stand. You, understandably, were not happy about that and the purpose of your visit that day was to get her back to take care of your 2 boys aged 6 and 9. You took a cane knife with you to "punish" her if she did not consent to coming back. An argument ensued and you dragged your wife into the compound where you hit her with the knife on the head and arm. Police arrived, having been called by neighbours and they luckily were able to disarm you and subdue you. Your wife suffered a serious injury to her head including a fractured skull. That shows the force you had used in the blow to her head. Any blow to the head is extremely serious and such a forceful blow underlines your intent to kill your wife”.

22. Handing down the sentence, His Lordship said:
    

I take as my starting point a term of 5 years’ imprisonment. You obviously planned to do this deed by bringing your own cane knife and hiding it in bushes outside. For that aggravating factor, I add a further two years. As a credit for the time you have spent in custody awaiting trial I deduct 12 months. The term of imprisonment that you will serve is one of 6 years, and you will not be eligible for parole for the first four years.

23. In State v Baleinabodua [2012] FJHC 981; HAC145.2010 (21 March 2012) Justice Temo seems to have accepted a ‘tariff’ for Attempted Murder, as between 8 and 11 years set by Justice Thurairaja. However, His Lordship seems to have expressed some doubt about the ‘tariff’ in view of Sections 44 (1) and said ‘I accept the above tariff, but mindful of section 44(1) of the Crimes Decree 2009’. His Lordship said:
    

"Attempted murder" is a serious offence. Section 44(1) of the Crimes Decree 2009 reads as follows, "...A person who attempts to commit an offence is guilty of the offence of attempting to commit that offence and is punishable as if the offence attempted, has been committed..." For murder, the penalty is a mandatory sentence of life imprisonment, with a judicial discretion to set a non-parole period (section 237 of the Crimes Decree 2009). The parties never referred the court to "an attempted murder case" under the Crimes Decree 2009. However, Mr. S. Waqainabete referred the court to The State v Sachindra Nand Sharma, Criminal Case No. HAC 045 of 2008S, High Court, Suva, where His Lordship Mr. Justice S. Thurairaja, reviewed four cases of attempted murder under section 214 of the repealed Penal Code, Chapter 17. His Lordship set the tariff for attempted murder, as between 8 years to 11 years, after reviewing the four authorities. I accept the above tariff, but mindful of section 44(1) of the Crimes Decree 2009.

24. In the operative part of the sentencing ruling, His Lordship stated:
    

On the "attempted murder" charge (Count No. 1), pursuant to section 44(1) and 237 of the Crimes Decree 2009, I sentence Anasa Baleinabodua to the mandatory sentence of life imprisonment. On the non-parole period, I start with a sentence of 9 years imprisonment. For the aggravating factors, I increase the sentence by 6 years to 15 years imprisonment. For the mitigating factors, I decrease the sentence by 5 years to 10 years imprisonment. You are to serve a non-parole period of 10 years' imprisonment.

Mandatory Sentencing Generally

25. It is pertinent to note here that the Section 237 read with Section 44 (1) of the Crimes Decree do not give the sentencing judge a discretion to impose a less sever sentence than life imprisonment on a convict in an Attempted Murder case. Discretion is only given to impose a non parole period. However, as a matter of practice, sentencing judges in Fiji have handed down sentences with fixed terms well below life imprisonment sometimes with a non parole period. (see: Akit (supra).
    
26. The rationale for sentencing judges doing so may be expounded in the observation made in State v Pickering [2001] FJHC 341; [2001] 2 FLR 228 (30 July 2001)
    

Section 8(b) which provides for a mandatory minimum term of imprisonment irrespective of the circumstances of offence or offender, is not a unique piece of law. Almost all common law jurisdictions have such provisions in their criminal law. Nor is it unique in Fiji. Murder, for instance carries a mandatory term of life imprisonment. Mandatory terms of imprisonment have been subjected to much criticism by judicial officers and law reformists. The reasons for such criticism are that mandatory minimum terms do not allow the judiciary to apply proper sentencing principles, and do not permit for adjustment according to the personal circumstances of the case. When the Crime (Sentences) Bill (now the Crime (Sentences) Act 1997 (UK)) was before the House of Lords for its Second Reading, Lord Bingham said:

"It is a cardinal principle of just sentencing that the penalty should be fashioned to match the gravity of the offence and to take account of the circumstances in which it was committed. Any blanket or scattergun approach inevitably leads to injustice in individual cases."

27. According to Section 26 (1) of the Constitution of the Republic of Fiji, every person is equal before the law and has the right to equal protection, treatment, and benefit of the law. The provision of mandatory sentences by law would amount to an erosion of an essential judicial discretion in regard to sentencing. Such provisions would also result in imposing identical sentences in cases where court thinks it appropriate and where court thinks it most inappropriate which amounts to treating unequals as equals in violation of Article 26 (1) of the Constitution.
    

Two-tiered process in Sentencing

28. In Sharma v State the Fiji Court of Appeal expounded the two tiered process that should be adopted by sentencing judges in Fiji:
    

"The present process followed by the courts in Fiji emanated from the decision of this Court in Naikelekelevesi –v- The State (AAU 61 of 2007; 27 June 2008). As the Supreme Court noted in Qurai –v- The State (CAV 24 of 2014; 20 August 2015) at paragraph 48:

" The Sentencing and Penalties Decree does not provide specific guidelines as to what methodology should be adopted by the sentencing court in computing the sentence and subject to the current sentencing practice and terms of any applicable guideline judgment, leaves the sentencing judge with a degree of flexibility as to the sentencing methodology, which might often depend on the complexity or otherwise of every case."

In the same decision the Supreme Court at paragraph 49 then briefly described the methodology that is currently used in the courts in Fiji:

"In Fiji, the courts by and large adopt a two-tiered process of reasoning where the (court) first considers the objective circumstances of the offence (factors going to the gravity of the crime itself) in order to gauge an appreciation of the seriousness of the offence (tier one) and then considers all the subjective circumstances of the offender (often a bundle of aggravating and mitigating factors relating to the offender rather than the offence) (tier two) before deriving the sentence to be imposed."

The Supreme Court then observed in paragraph 51 that:

"The two-tiered process, when properly adopted, has the advantage of providing consistency of approach in sentencing and promoting and enhancing judicial accountability _ _ _."

To a certain extent the two-tiered approach is suggestive of a mechanical process resembling a mathematical exercise involving the application of a formula. However, that approach does not fetter the trial judge's sentencing discretion. The approach does no more than provide effective guidance to ensure that in exercising his sentencing discretion the judge considers all the factors that are required to be considered under the various provisions of the Sentencing Decree.

Application of Two-Tiered Process

29. Now I proceed to apply the two tiered process to the accused's case.
    

Starting Point/ Sentencing Range

30. As was observed in Sharma, Courts should first consider the objective circumstances of the offence (factors going to the gravity of the crime itself) in order to gauge an appreciation of the seriousness of the offence.
    
31. The culpability of the offender is the initial factor in determining the seriousness of an offence. It is an essential element of the offence of attempted murder that the offender had an intention to kill; accordingly, an offender convicted
of this offence will have demonstrated a high level of culpability. Even so, the precise level of culpability will vary in line with the circumstances of the offence and whether the offence was planned or spontaneous. The use of a weapon may influence this assessment. There is no evidence of pre planning although a cane knife was used to inflict the harm. Accused did not bring the knife to the crime scene form home.
Intention was formed on the spur of the moment. Accused said he lost his self control.
    
32. Harm factor is also relevant to determine the seriousness of the offence. According to doctor's evidence, the degree of harm caused to the victim is somewhat high. However, the Prosecution failed to elicit evidence on the actual harm caused to the victim when she was called to give evidence. The victim impact statement too does not provide any helpful information in this regard. However, victim suffered serious injuries to her both hands and head including a fractured skull. Any blow to the head, the most vulnerable part of the body, is extremely serious and such a forceful blow underlines the accused's intent to kill. Fortunately, murderous intent did not succeed. It must be emphasised that harm encompasses not only the harm actually caused by an offence but also any harm that the offence was intended to cause; since the offence can only be committed where there is an intention to kill, an offence of attempted murder will always involve, in principle, the most serious level of harm.
    
33. Having considered the nature of the offence, I consider that the Level 3 of the Sentencing Council Guidelines is most appropriate to deal with the factual scenario of this case. Starting point and the sentencing range will be decided on the basis that the offending was a spontaneous attempt to kill causing little physical or psychological harm to the victim. Accordingly, Accused's case attracts a starting point of 9 years' imprisonment within the sentencing range between 6-14 years' imprisonment.
    

Aggravating Factors

34. Accused had used a cane knife to assault the victim. As I have decided to take into consideration the weapon used and the mental and physical suffering caused to the victim in selecting the starting point, I do not consider them to be aggravating circumstances again.
    

Domestic Violence

35. I consider the accused's case as a classic case of domestic violence that must attract higher sentence. Under Domestic Violence Decree 2009, domestic violence offence necessarily encompasses an attempt to kill the wife.
    
36. Sentencing Guidelines Council has issued definitive guideline in respect of offences amounting to domestic violence. This guideline covers issues which are relevant across the range of offences that might be committed in a domestic context. Offences committed in a domestic context should be regarded as being no less serious than offences committed in a non- domestic context. Thus, the starting point for sentencing should be the same irrespective of whether the offender and the victim are known to each other or unknown to each other. A number of aggravating factors may commonly arise by virtue of the offence being committed in a domestic context and these will increase the seriousness of such offences.
    
37. Since domestic violence takes place within the context of a current or past relationship, the history of the relationship will often be relevant in assessing the gravity of the offence. Therefore, a court is entitled to take into account anything occurring within the relationship as a whole, which may reveal relevant aggravating or mitigating factors.
    
38. Conduct of the accused had forced the victim to desert him with children. There was a pending Family Court case where a Domestic Violence Restraining Order had been
    

sought. There was also a dispute over access to children for whom maintenance was being paid by the accused.

39. Accused was suspicious of victim having an illicit affair with her uncle's son and tricks the victim to obtain the information that her uncle's son was to accompany her to police to make a complaint against him of harassment. Victim's constant refusal to talk to him angered the accused to commit this crime.
    
40. It seems that the accused had the power to exert considerable control over the victim economically and psychologically. She was dependent upon the monthly maintenance of the accused. Her pathetic situation was manifested in her evidence when she said: I do not want to give evidence and put my children's future in trouble. This kind of a relationship implies accused abusing position of trust and power. The UK guidelines Overarching Principles: Seriousness identifies abuse of a position of trust and abuse of power as factors that indicate higher culpability. Trust implies a mutual expectation of conduct that shows consideration, honesty, care and responsibility. An abuse of trust, whether through direct violence or emotional abuse, represents a violation of this understanding; an abuse of power in a relationship involves restricting another individual's autonomy which is sometimes a specific characteristic of domestic violence. This involves the exercise of control over an individual by means which may be psychological, physical, sexual, financial or emotional.
    

Victim is particularly vulnerable

41. The Accused has exploited the victim's vulnerability. There had been a subtle attempt to use the power and position accused exercised over the victim to prevent her from seeking and obtaining help from the system (Police/ Courts). Any steps taken to prevent the victim reporting an incident or obtaining assistance will usually aggravate the offence.
    

Mitigating Factors

42. Since I have already taken into consideration the fact that the offending was spontaneous in selecting the starting point and the sentencing range, Accused does not get any discount on that account as a mitigating factor.
    

(I) Positive good character

43. Accused has no previous convictions. He is sorry for what he has done to his wife and now repents and blames himself for losing his self-control in his anger. He begs for mercy of the court. It should be noted here that in respect of an offence of violence in a domestic context, an offender's good character in relation to conduct outside the home should generally be of no relevance where there is a proven pattern of behaviour.
    

(II) Loss of self- control

44. The fact of him losing self-control, if true, can be considered as a mitigating factor. However, there is no evidence of sudden provocation for him to loos self control. Victim had not offered any provocation when she refused to negotiate with him. There is no obvious reason for him to suspect the victim. Accused's assertion (of suspicion) needs to be treated with great care, both in determining whether it had a factual basis and in considering whether in the circumstances the alleged conduct amounts to provocation sufficient to mitigate the seriousness of the offence. At a time when the defence of sudden provocation is replaced with the defence of loss of self- control in some jurisdictions including the UK, Accused should be given a discount on that account.
    

(III) Remorse

45. Accused has not shown any remorse in court. However, he had admitted sticking his wife with a cane knife when he was first interviewed by police. He had cooperated with police and handed over the cane knife he used to police. He promises to court that he will not harass his wife in future and become a law abiding citizen. He has sought forgiveness from his wife children and wife's mother and extended family.

(IV) Youth

46. Accused is 35 years old. He is caught up in this unfortunate incident in the peak of his youth. Court is sorry that he has committed this offence in his youth.
    

(V) Dependent's Wellbeing

47. Accused was employed as a part time sales person in a grocery store where he earned $ 120 weekly to maintain his family and the elderly parents. His Children are with the victim. However, he had been paying maintenance to the family. His long term prison sentence will definitely have a negative impact on the upbringing of children.
    

(VI) Victim's Wish

48. As a matter of general principle, a sentence imposed for an offence of violence should be determined by the seriousness of the offence, not by the expressed wishes of the victim. In her evidence, victim said that she did not want to give evidence and put her children's future in trouble. She made a deliberate attempt to suppress the truth and wanted to withdraw the case.
    
49. Court is skeptical if her wish is genuinely triggered by her willingness to continue with him as husband and wife. She did not say that she wants to reconcile with the accused and resume the family life. Her concern was the children's future and their upbringing.
    
50. Either the offender or the victim (or both) may ask the court to take into consideration the interests of children and to impose a less severe sentence. The court will wish to have regard not only to the effect on the children if the relationship is disrupted but also to the likely effect on the children of any further incidents of domestic violence. Court must be confident that victim's wish is genuine, and that giving effect to it will not expose the victim and her children to a real risk of further violence. There is a risk that attitude of the victim was induced by threats made by, or by a fear of, the Accused; Court is mindful that risk of such threats will be increased if it is generally believed that the severity of the sentence may be affected by the attitude /wish of the victim. Therefore, Court views any attempt to reconcile with skepticism once the matter is brought before court.
    

Conclusion

Sentence

51. Now I shall proceed to sentence the Accused. I have already selected nine years' imprisonment as the starting point. Having considered the aggravating circumstances, I add two years to the starting point bringing the interim sentence to eleven years' imprisonment. I deduct four years in mitigation and settle the final sentence at seven years' imprisonment. Accused must serve a minimum of seven years' imprisonment before being eligible for parole.
    
52. 30 days to appeal to the Fiji Court of Appeal
    

Aruna Aluthge
Judge

At Lautoka
15th February, 2016

Solicitors: Office of the Director of Public Prosecution for State
Office of Gordon & Company for Accused