State v Nadan - Sentence [2022] FJHC 72; HAC112.2018 (25 February 2022)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Case No.: HAC 112 of 2018

STATE

V

MUNI NADAN

Counsel : Mr. A. Singh with Ms. S. Swastika and Mr. U. Lal for the State.

: Ms. K. Boseiwaqa and Mr. B. Makanji for the Accused.

Dates of Hearing : 25, 26, 27, 28, 31 January, 01, 03, 04

February, 2022.
Closing Speeches : 11 February, 2022
Date of Judgment : 11 February, 2022
Date of Sentence : 25 February, 2022

SENTENCE

1. In a judgment delivered on 11^th February, 2022 this court found the accused guilty and convicted him for one count of murder and one count of breach of suspended sentence as per the following information:

COUNT ONE
Statement of Offence

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

Particulars of offence

MUNI NADAN on the 6^th day of June 2018 at Sigatoka in the Western Division murdered ASBIN NAIR by stabbing him with a cane knife.

COUNT TWO
Statement of Offence

BREACH OF SUSPENDED SENTENCE: Contrary to section 28 (1) (2) and section 26 of the Sentencing and Penalties Act 2009.

Particulars of Offence

MUNI NADAN on the 6^th day of June 2018 at Sigatoka in the Western Division breached the suspended sentence of 10 months imprisonment which was suspended for 2 years dated the 29^th day of May, 2018 vide Sigatoka Criminal Case File Number 418/16 by committing another offence namely Murder.

2. The brief facts were as follows:
   

On 6^th June, 2018 at about 8:41pm the deceased was walking home when the accused who was hiding beside the road with a cane knife struck the deceased from behind multiple times between the neck and the shoulder. The accused had seen the deceased after a car had overtaken the deceased. The injuries on the deceased were so severe that he died instantly.

3. The accused then dragged the deceased body down the slope onto a vacant land. After sometime, the son of the deceased was returning home, with his mobile phone torch light he saw blood on the road and his father’s flip flops. Upon further search in the area he saw his father’s body lying on the slope of the vacant land. The matter was reported to the police. The post mortem examination revealed the cause of death of the deceased to be a complete transection or cut of the vertebral artery, internal carotid and cervical spinal cord by the use of a sharp object.
   
4. Upon investigation the accused was arrested, caution interviewed and then charged.
   
5. Furthermore, on 29^th May, 2018 the accused was convicted by the Sigatoka Magistrate’s Court for the offence of abduction of young persons. In this case the accused was sentenced to 10 months imprisonment which was suspended for 2 years. However, during the operational period of the suspended sentence the accused committed the offence of murder.
   
6. The state and the defence counsel filed their sentence and mitigation submissions for which this court is grateful.
   
7. Counsel for the accused presented the following personal details and mitigation on behalf of the accused:
   

a) The accused is 29 years of age;

b) Was a Carpenter earning $150.00 per week;

c) Supports his elderly mother.

AGGRAVATING FACTORS

8. The following aggravating factors are obvious:

a) Unprovoked Attack

The deceased was walking home unarmed, unsuspecting and was vulnerable when the accused came out of his hideout and struck the deceased with a cane knife from behind.

b) Breach of Trust

The accused was known to the deceased and his family and was also their neighbour. The accused grossly breached the trust of the deceased and his family by his action.

c) Planning

There is a high degree of planning and premeditation involved. The accused had thought about what he wanted to do to the deceased that night. He walked from his house and hid near the house of the deceased with a cane knife, he knew the deceased will be walking home alone.

To conceal what he had done the accused dragged the body of the deceased from the road to the slope of a vacant land. Thereafter, he threw the cap of the deceased in someone else’s compound and the deceased mobile phone in the swamp and went home. At home he cleaned the cane knife to remove the blood stains.

d) Victim Impact Statement

In the victim impact statement the eldest son of the victim Anish Aman Nair stated that his life changed after the death of his father. He misses his father’s company, love and care.

9. As per the court file the accused has spent 7 months and 17 days in remand which is accounted for in imposing a minimum term.
   
10. The sentencing regime for the offence of murder is mandatory life imprisonment fixed by law which this court cannot interfere with.
    
11. 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...”

12. 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.
    
13. The state counsel is seeking a minimum term to be imposed on the basis of the horrific nature of the offending committed on a defenceless person. A minimum term is required to send a strong message of deterrence to others.
    
14. I agree, this was a gruesome unprovoked attack on an unsuspecting, vulnerable, defenceless person who died instantly. Thereafter the body of the victim was dragged by the accused from the road to a slope on a vacant land.
    
15. Mr. Nadan you are a coward and a heartless person who has no value for human life. You are also a disgrace to the society, the manner in which you had carried out the offending is dreadful. You showed no sympathy for the victim.
    
16. A family has lost a beloved member, the children a father and a bread winner. An innocent life has been lost the attack on the deceased was intentional, directed between the head and the shoulder of the deceased multiple times.
    
17. There can be no lawful justification for the taking away of another human life in such circumstances this was a selfish, cold-hearted and an unprovoked attack on a defenceless victim.
    
18. 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.
    
19. 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.
    
20. Furthermore, the accused by committing the offence of murder breached the suspended sentence ordered by the Sigatoka Magistrate’s Court on 29^th May, 2018. The date of the offence of murder falls within the operational period of the suspended sentence.
    
21. The offence of murder is about 8 days after the accused was given the suspended sentence. To give effect to the offence of breach of suspended sentence this court has to consider whether a consecutive or a concurrent sentence is warranted in this case.
    
22. The accused through his counsel has not given any reason why his suspended sentence should not be made consecutive. Considering the totality principle of sentencing and the need for deterrence a partial consecutive sentence will not have a crushing effect on the accused.
    
23. It is quite concerning to note that the new offence of murder was committed by the accused just days after the suspended sentence was imposed. This suggests that the accused has no respect for a court order. On the basis of the foregoing, I activate the imprisonment term ordered by the Sigatoka Magistrate’s Court by imposing 9 months imprisonment term from the suspended sentence to be served consecutively with the minimum term in count one.
    
24. In summary the accused is sentenced to mandatory life imprisonment with a minimum term of 18 years and 9 months to be served before the accused may be considered for a pardon.
    
25. 30 days to appeal to the Court of Appeal.
    

Sunil Sharma

Judge
At Lautoka
25 February, 2022

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