State v Ali - Sentence [2018] FJHC 492; HAC018.2017 (12 June 2018)

IN THE HIGH COURT OF FIJI AT SUVA

CASE NO: HAC. 018 of 2017

[CRIMINAL JURISDICTION]

STATE

V

IMSHAD IZRAR ALI

Counsel : Mr. M. Vosawale and Ms. S. Shameem for State

Mr. A. K. Singh for Accused

Hearing on : 15 May 2018 to 05 June 2018
Summing up on : 07 June 2018
Judgment on : 08 June 2018
Sentenced on : 12 June 2018

SENTENCE

1. Imshad Izrar Ali, you stand convicted of the following offence;
   

Statement of Offence

Murder: contrary to section 199 and 200 of the Penal Code Act 17.

Particulars of Offence

IMSHAD IZRAR ALI on the 1^st day of November, 2009 at Samabula, Suva in the Central Division murdered Rajeshni Deo Sharma.

2. According to the evidence adduced in this case, after having an argument with the deceased inside the kitchen you brought an iron rod from the toy box in front of the bedroom and struck her head with that iron rod; you kicked her on the left side of her face; you pressed her neck with your right leg; and then you strangled her to death with an electrical cord. At the time of offence, you were living together with the deceased who was 34 years old. You are 38 years old now.
   
3. In terms of the provisions of section 200 of the Penal Code which reads “Any person convicted of murder shall be sentenced to imprisonment for life”, the punishment for the offence of murder is mandatory life imprisonment. (See Balekivuya v State [2016] FJCA 16; AAU0081.2011)
   
4. Your counsel stressed that this court can only under section 33 of the Penal Code recommend a minimum term you should serve and has no jurisdiction to ‘fix’ a minimum term.
   
5. Before it was amended by Penal Code (Penalties ) (Amendment) Act 2003, section 33 of the Penal Code provided thus;
   

“Whenever a sentence of imprisonment for life is imposed on any convicted person the judge who imposes the sentence may recommend the minimum period which he considers the convicted person should serve.”

6. The above provisions were repealed by Penal Code (Penalties ) (Amendment) Act 2003 and was substituted with the following;
   

“33. Where an offence in any written law prescribes a maximum term of imprisonment of ten years or more, including life imprisonment, any court passing sentence for such offence may fix the minimum period which the court considers the convicted person must serve."

7. In Yunus v State [2013] FJSC 3; CAV0008.2011 (24 April 2013), the Supreme Court indorsed the following conclusion of the Court of Appeal reached in the case of Silatolu v The State [2006] FJCA 13; AAU0024.2003S (10 March 2006) with regard to the effect of the above amendment to section 33 of the Penal Code;
   

“To apply it in the present case, the section prior to the 2003 amendment was more favourable to the appellants than the section in the amendment. If a minimum period be recommended, it is, obviously, only a recommendation which the authorities may adopt or may not adopt so the Commission on the Prerogative of Mercy has the jurisdiction to advise, if the legal requirements and circumstances otherwise justify, that a prisoner be released before the recommended minimum period has elapsed. No such discretion can exist under the 2003 amendment. Once a minimum period has been fixed, the Commission has no jurisdiction to recommend the release of an appellant before the fixed minimum period has elapsed.” [Emphasis added]

8. His Lordship Justice Goundar in State v Singh [2009] FJHC 27; HAC072.2008 said;
   

“[5] In my view, there are no hard and fast rules for minimum term in murder cases. Each case is to be assessed on its own facts. If the court finds aggravating features present in a case of murder, the court has discretion to fix minimum term, after weighing the aggravating circumstances against any mitigating factors.”

9. In this case, the serious breach of trust demonstrated by taking the life of your own partner and the gruesome manner in which she was killed are clear aggravating factors.
   
10. You were initially charged for the same offence under Case No. HAC 11 of 2010. You were released on bail in relation to the said case on 03^rd March 2010. On 20^th January 2011 the bail conditions were varied in order to allow you to travel to India for medical treatment. You had given an undertaking to return to Fiji on or before 11^th February 2011 and to hand over your passport to the registry on 16^th February 2011. However, you chose not to come back to Fiji and you are before this court today because you were deported from India and handed over to the authorities in Fiji in December 2016. According to what you have submitted in the bail application filed before this court, while you were in India, you started having a de-facto relationship with one Indian Lady and you had a three year old child from that relationship by the time you made the aforementioned bail application.
    
11. The reason I had to mention the above facts that were submitted to this court in Case No. HAM 32 of 2017 was because your counsel, based on your instructions submitted during the hearing on mitigation and sentencing that, the fact that you have a wife and a four year old son in India and the hardships they will have to face given your impending incarceration should be considered by this court as mitigating factors. The above conduct of yours in fact is a clear indication of your lack of remorse concerning the offence you committed on 01/11/09 in Fiji and your contempt towards the judicial system. If what is submitted regarding your partner in India and the son is true, only you are to be blamed regarding what they would have to endure, and no one else. Such circumstances cannot be regarded as a mitigating factor in this case.
    
12. Your other personal circumstances that were highlighted by your counsel such as your medical condition, your claim that your property was destroyed during Cyclone Winston and your claim that you have no immediate family members in Fiji also do not mitigate your offending. The only factor that could be regarded as a mitigating factor is the fact that you are a fist offender as revealed in the submissions filed by the prosecution.
    
13. As revealed by the evidence, this was not a case of a premeditated killing. The offence was committed after an argument you and the deceased had. I have already decided that the facts of this case does not disclose that your power of self-control was deprived and you were induced to commit the assault on the deceased by a wrongful act done or an insult made by the deceased. However, in fixing the minimum term in terms of section 33 of the Penal Code (as amended), I will take into account the statements you have made in your cautioned interview and the charge statement to the effect that you killed the deceased because you were jealous and angry in order to further convince myself that this was not a case of a premeditated killing.
    
14. I also note that you have spent a period of nearly 01 year and 10 months in custody in view of this offence you committed.
    
15. I hereby sentence you to life imprisonment pursuant to section 200 of the Penal Code. Having considered all the circumstances I have outlined above, including the time you have spent in custody, I would in view of the provisions of section 33 of the Penal Code (as amended) fix 18 years as the minimum period you should serve. In the event it becomes relevant or where it is relevant, the aforementioned period may also be construed as the minimum term you should serve before pardon may be considered.
16. Thirty (30) days to appeal to the Court of Appeal.
    

Vinsent S. Perera
JUDGE

Solicitors;

Office of the Director of Public Prosecutions for State.
A.K.Singh Lawyers for Accused.