State v Singh [2022] FJHC 184; HAC 1 of 2018 (14 April 2022)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Case No.: HAC 1 of 2018

STATE

V

SHALENDRA BHAN SINGH

Counsel : Mr. S. Babitu with Ms. S. Swastika for the State.

: Ms. S. Ali for the Accused.

Dates of Hearing : 30, 31 March, 01, 04 April, 2022

Closing Speeches : 05 April, 2022
Date of Judgment : 06 April, 2022
Date of Sentence : 14 April, 2022

SENTENCE

1. In a judgment delivered on 6^th April, 2022 this court found the accused guilty and convicted him for one count of murder as per the following information:
   

Statement of Offence

MURDER: Contrary to section 237 of the Crimes Act 2009.

Particulars of offence

SHALENDRA BHAN SINGH on the 25^th day of December, 2017 at Lautoka in the Western Division murdered KUNAL KAMLESH SAMI.

2. The brief facts were as follows:
   
   1. On 25^th December, 2017 the deceased who was the defacto partner of the accused step daughter Ranshika Kumar upon invitation went to the accused house to celebrate Christmas. The deceased and the accused were drinking alcohol when the deceased made some comments and swore at the accused.
      
   2. The accused also swore at the deceased and an argument broke out between the two. Thereafter, the accused and the deceased had a fist fight inside the house of the accused which later ended up in the compound. After the two were separated by neighbours the deceased left and was standing on the road away from the house of the accused. The accused did not want the deceased to come back.
      
   100. After a while the accused saw the deceased on the road and he walked towards the deceased with a 2 x 1 timber in his hand and struck the deceased several times, and also kicked and stomped him which resulted in the death of the deceased almost instantly. The victim was taken to the hospital but was pronounced dead on arrival.
        
   4. Furthermore, the accused had also said on three occasions that day that he will kill the deceased. An eye witness was able to record the actual incident in a mobile phone which was played in court. The post mortem examination report noted the cause of death as:
      • (a) Cardiac Tamponade;
      • (b) Haemopericardium;
      • (c) Ruptured heart due to blunt force trauma;
      • (d) Severe chest trauma;
      • (e) Cerebral oedema; and
      • (f) Blunt force trauma.
        
   5. Upon investigation the accused was arrested, caution interviewed and then charged.
      
3. The state and the defence counsel filed their sentence, victim impact statements and mitigation submissions for which this court is grateful.
   
4. Counsel for the accused presented the following personal details and mitigation on behalf of the accused:
   

a) The accused is 46 years of age;

b) Has a son who is in year 2;

c) As a Carpenter was earning $150.00 per week;

d) Is remorseful that a life has been lost;

5. Has sought forgiveness from the deceased family and his step daughter;
6. Seeks forgiveness and leniency of the court.
   

AGGRAVATING FACTORS

5. The following aggravating factors are obvious:

a) Unprovoked Attack

The deceased was standing on the road unarmed, unsuspecting and was vulnerable when the accused went from his compound with a timber in his hand and struck the deceased. Not only this, the accused kicked the deceased on his face and stomped him on his chest whilst the deceased lay on the ground motionless.

b) Breach of Trust

The deceased was in a defacto relationship with the step daughter of the accused. The accused and his wife had invited the deceased for a Christmas celebration at their house. The accused grossly breached the trust of the deceased and his family by his actions.

c) Exposure to violence

In the video footage played in court, children from the neighbouring houses were exposed to violence. The footage shows children around the crime scene, shouting in fear and despair in what they were witnessing. A witness Alumita Rakidiva stated in her evidence that the assault on the deceased was so horrifying that she was scared to even approach the accused to calm him at the time he was hitting the deceased with the timber.

d) Victim Impact Statement

There were two victim impact statements filed in court.

1. The 74 year old grandmother of the deceased Khatoon Bi stated that the deceased was one of her twin grandsons who she had cared for since he was 5 months old. It was the saddest moment in her life when she was told of the death of her grandson and even difficult for her when she was asked to identify her grandson’s body. Khatoon feels guilty for allowing her grandson to go to the house of the accused that day. She still carries this guilt with every passing day.
   
2. Karun Kunal Sami the twin brother of the deceased stated that he misses his brother a lot. Christmas after 2017 has not been the same for the family. They have stopped celebrating Christmas after this incident. Karun has stopped socializing with people since he is wary of what happened to his twin brother by his father in law.
   
6. As per the court file the accused has spent 2 months and 28 days in remand which is accounted for in imposing a minimum term.
   
7. The sentencing regime for the offence of murder is mandatory life imprisonment fixed by law which this court cannot interfere with.
   
8. The Court of Appeal in Salesi Balekivuya and another vs The State, Criminal Appeal no. AAU 81 of 2011 at paragraph 40 confirmed the above as follows:
   

“... There is no basis for undertaking the approach described above when the head sentence is fixed by law. Furthermore there is no basis for proceeding to determine a non-parole period for a person sentenced to the mandatory life sentence for murder since the specific sentence provision of section 237 of the [Act] displaces the general sentencing arrangements sat out in section 18 of the Sentencing and Penalties [Act]. In my judgment the reference to the court sentencing a person to imprisonment for life in Section 18 of the Sentencing [Act] is a reference to a life sentence that has been imposed as a maximum penalty, is distinct from a mandatory penalty...”

9. However, this court has a discretion to determine the length of the minimum term the accused must serve before he may be considered for a pardon.
   
10. The state counsel is seeking a minimum term to be imposed on the basis of the horrific manner in which the accused had assaulted a defenceless person who had fallen on the road and was motionless. A minimum term is required to send a strong message of deterrence to others.
    
11. I agree, this was a dreadful and unprovoked attack on an unsuspecting, vulnerable, defenceless person who died almost instantly on the road where he was assaulted. The doctor on duty had mentioned that the victim was dead on arrival.
    
12. Mr. Singh you are a heartless person who has no value for human life. The manner in which you had assaulted the deceased was callous and inhumane in full view of the children and the residents of the Settlement you were living in. You showed no sympathy towards the deceased.
    
13. A family has lost a beloved member, Ranshika your step daughter her defacto partner of about 7 months and a breadwinner. An innocent life has been lost, the attack on the deceased was intentional, directed on the head, followed by kicking and stomping of the deceased multiple times.
    
14. There can be no justification for the taking away of another human life in such circumstances you were selfish, and cold-hearted it was an unprovoked attack on a defenceless victim.
    
15. The purpose of a minimum term is to assure the community and the public at large that offenders for such an offending serve a definite and meaningful period of imprisonment. A murder committed with an intention to kill will attract a longer minimum term of imprisonment than murder by recklessness.
    
16. In view of the above, the accused is sentenced to mandatory life imprisonment for one count of murder with a minimum term of 18 years to be served before the accused may be considered for a pardon.
    
17. 30 days to appeal to the Court of Appeal.
    

Sunil Sharma

Judge

At Lautoka
14 April, 2022

Solicitors
Office of the Director of Public Prosecutions for the State.
Office of the Legal Aid Commission for the Accused.