Sen v State [2008] FJSC 42; CAV0014.2007 (26 February 2008)

IN THE HIGH COURT OF FIJI ISLANDS
AT SUVA

CRIMINAL APPEAL NO.CAV0014/2007
(Fiji Court of Appeal No. CAV0014 of 2007)

BETWEEN:

SHANEEL SEN
Petitioner

AND:

THE STATE
Respondent

Coram: The Hon. Justice Keith Mason, Judge of the Supreme Court
The Hon. Justice Robert French, Judge of the Supreme Court
The Hon. Justice Mark Weinberg, Judge of the Supreme Court

Hearing: Monday, 25 February 2008, Suva

Counsel: Petitioner in Person
A. Prasad for the Respondent

Date of Judgment: Tuesday, 26th February 2008, Suva

JUDGMENT OF THE COURT

1. On 13 May 2005 the Director of Public Prosecutions laid an Information under which Shaneel Sen was charged with murder in the following terms:
   

"MURDER: Contrary to sections 199 and 200 of the Penal Code, Cap 17.

Particulars of Offence:

SHANEEL SEN s/o Ugar Sen, on the 26th day of April 2005, at Lautoka in the Western Division murdered MOHAMMED SALIM KAHN s/o Mohammed Fariq Kahn."

2. Mr Sen pleaded not guilty and was tried before a judge and assessors on 13 March 2006. He was legally represented at trial. The hearing concluded on the same day and the trial judge summed up to the assessors on 16 March 2006. After retiring to consider their verdict for 1¾ hours, the assessors each found Mr Sen guilty of murder. The trial judge saw no reason to disagree with their opinions and entered a conviction. On the same day he sentenced Mr Sen to a term of life imprisonment recommending that he not be released before serving seven years.
   
3. On 1 April 2006 Mr Sen wrote to the Registrar of the Court of Appeal seeking to appeal against both his conviction and his sentence. The stated grounds of the appeal were as follows:
   

"1. That the sentence imposed upon me was wrong in principle having regard to the unanimous opinion of the assessors and the finding of the learned trial judge that I was Provoked in to committing the offence of which Hi was found guilty. [sic]

2. That the sentence imposed on me is harsh and excessive having regard. To all the circumstances of the case. [sic]

3. That he learned trial judge failed to consider a suspended sentence. Refer to judgment of Justice Jerald Winter of Priya Darshani v State was given on suspended sentence the same nature of offence. [sic]

4. That the learned trial judge erred in law not considering the accused being a first offender at a tender age of twenty one (21) years.

5. That the learned judge erred in law not considering the charge of Murder be dropped to Manslaughter. The offence on which your humble appellant is charged on was not committed intentionally being provoked to commit." [sic]

4. The Court of Appeal heard the appeal on 20 March 2007 and made the following orders:
   

"(1) Allow the appeal against the conviction and sentence for murder, set them aside, and enter judgment of acquittal on the charge of murder.

(2) Substitute a conviction for manslaughter.

(3) Sentence the appellant to imprisonment for a term of seven years commencing on 16 March 2006."

5. On 18 April 2007 Mr Sen lodged an appeal against his sentence in the Supreme Court. We will treat this appeal as a petition for special leave to appeal against the sentence.
   
6. The grounds upon which Mr Sen sought special leave to appeal were, in summary, as follows:
   

1. The sentence imposed was harsh and excessive having regard to the fact that the Court of Appeal agreed that Mr Sen had been provoked to commit the act which resulted in the death of the deceased and had no accompanying intention to commit murder.

2. That the case of The State v Priya Darshani (HAV007/2005) (31 January 2006, Gates J) should be set as a guideline for his sentencing, it being a precedent similar to his own case. A sentence of two years, wholly suspended, was imposed in that case.

Thsons for decision of the Court of Appeal

7. The Court of Appeal outlined the facts of the case in its reasons for judgment. The deceased was the petitioner’s stepfather. The petitioner lived with him and with the petitioner’s mother and brother in a ground floor flat of a suburban house in Lautoka. On 26 April 2005 at about 10.30pm the mother and stepfather returned from visiting friends or relatives. They had been drinking. They went into their bedroom and began arguing as they sometimes did when they had been drinking.
   
8. When the petitioner came out of the bathroom he heard his mother and stepfather fighting. He knocked on the door and asked his mother to open it. She opened the door and his stepfather stepped out and became abusive towards the petitioner who began to be concerned for his safety. When his stepfather became more aggressive he obtained a knife from the kitchen and warned him that he must behave or he would "hit" him with the knife. The stepfather kept on coming towards him and the petitioner swung the knife, cutting the stepfather in the face. He still came on and the petitioner then swung at him again, this time striking him in the left front of his chest. The knife penetrated to the lower left lung and lacerated the apex of the heart. The stepfather was taken to hospital, but died soon afterwards. There was no dispute that the blow struck by the petitioner killed his stepfather.
   
9. The Court of Appeal found that in the course of his summing up on the defence of provocation, the trial judge directed that the assessors must be satisfied beyond reasonable doubt that the appellant had not been provoked by his stepfather. He did not, however, expressly direct that the onus of proving absence of provocation lay on the prosecution as was the case with self defence. In the result, it was said, the burden of proof on provocation was not explicitly assigned to the State or prosecution as it had in the case of self defence. Counsel for the Director of Public Prosecutions acknowledged before the Court of Appeal that in this respect there was a defect in the summing up.
   
10. The Court of Appeal recorded in its reasons that the Director of Public Prosecutions intimated, through counsel, that he had no wish to undertake a fresh trial of the murder charge, certainly having regard to the delay before such a trial could commence. He and counsel for the petitioner accepted that if the murder conviction were set aside, a conviction of manslaughter should be substituted in its place. That would have been the result if the defence of provocation had succeeded. It was not a course mandated by the quashing of the murder conviction. The Court of Appeal regarded the substitution of a manslaughter verdict as within its powers pursuant to s 24(2) of the Court of Appeal Act Cap 12. It said (at [7]):
    

"In terms of that provision, the case is one in which appellant has been convicted of an offence (murder) and the Judge must therefore have been satisfied of facts which proved him at least to be guilty of another but lesser offence (manslaughter) under s 198 of the Penal Code committed by means of an unlawful act causing the death of another person. The unlawful act was the knife blow to, or wounding of, the body with the knife but without the accompanying intention that had to be proved to make it the offence of murder."



11. On the question of sentence, the Court of Appeal said that the reduced verdict meant that the petitioner was to be sentenced for the lesser offence of manslaughter. There was not very much personal information before the Court about the petitioner. He was 20 years old at the time of the offence. He was unmarried and lived at home with his brother, mother and stepfather. He also had an adult sister and one or two other siblings. He had attended school and was described in the record as a "Boat Builder". He had no prior convictions and appeared not to have exhibited violent behaviour towards his stepfather or others in the past. The Court of Appeal observed that the stepfather was inclined, at times, to bouts of excessive drinking during which his conduct towards his stepchildren and their mother became aggressive and insulting. There was little doubt that the petitioner did not positively wish to kill his stepfather and the judge accepted that he was genuinely remorseful about what had happened.
    

Whether special leave to appeal should be granted



12. The offence of manslaughter is defined in s 198 of the Penal Code, Cap 17:
    

"Any person who by an unlawful act or omission causes the death of another person is guilty of the felony termed manslaughter. An unlawful omission is an omission amounting to culpable negligence to discharge a duty tending to the preservation of life or health, whether such omission is or is not accompanied by an intention to cause death or bodily harm."



13. Section 201 of the Penal Code, Cap 17 states:
    

"Any person who commits the felony of manslaughter is liable to imprisonment for life."




The offence of murder is defined in s 199 of the Penal Code which provides in the relevant part:




"(1) Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder."




The balance of the subsection and the remaining subsections relate to suicide pacts.



14. Section 200 provides that:
    

"Any person convicted of murder shall be sentenced to imprisonment for life."



15. Section 203 of the Penal Code deals with killing on provocation in the following terms:
    

"When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation as hereinafter defined, and before there is time for his passion to cool, he is guilty of manslaughter only."



16. As appears from the definition of "murder" any person who commits murder has necessarily committed manslaughter. A person who kills another under provocation in "circumstances which but for the provisions of [section 203] would constitute murder" has necessarily done so with "malice aforethought" within the meaning of s 199. Notwithstanding that mental state the offender is treated as guilty of manslaughter only.
    
17. The term "provocation" is defined in s 204. The relevant parts of that definition are as follows:
    

"The term "provocation" means, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial or fraternal relation, or in the relation of master or servant, to deprive him of the power of self-control and to induce him to commit an assault of the kind which the person charged committed upon the person by whom the act or insult is done or offered."



18. In this case the Court of Appeal quashed the conviction for murder and substituted a conviction for manslaughter. It did not, however, make clear the basis for that conviction. On one view, the Court of Appeal characterised the offence, for sentencing purposes, as unlawful and dangerous manslaughter. That explains the reference to the "unlawful act" being the knife blow to, or wounding of, the body with the knife "but without the accompanying intention that had to be proved to make it the offence of murder". Had the Court of Appeal desired to sentence on the basis of manslaughter by provocation, it would not have made that last observation. To some extent this view of the Court of Appeal’s reasoning is fortified by their Lordships’ observation, at [89], that there was little doubt that the petitioner "did not positively wish to kill his stepfather".
    
19. Having characterised the offence as manslaughter by way of unlawful and dangerous act, their Lordships said surprisingly little to indicate why a sentence of seven years imprisonment should be imposed. Manslaughter can, of course, carry a wide variety of sentences. See generally Kim Man Bae v The State (Court of Appeal, Cr App No AAU0015/1998S, 26 February 1999 at pp 4-5). Ms Prasad, who appeared half oalf of the respondent, indicated that the range extended from as low as a suspended sentence to perhaps seven or eight years imprisonment. That means that the petitioner was given a sentence that was close to the top of the range for an offence of this nature.
    
20. As the Court of Appeal observed, there was little personal information available regarding this petitioner. It was known, however, that the trial judge, who had sentenced him had recommended a term of only seven years as the minimum that should be served before being eligible to be considered for release. That low minimum no doubt reflected the trial judge’s view of the petitioner’s prospects of rehabilitation.
    
21. Although the Court of Appeal did not sentence the petitioner on the basis of any legal defence of provocation, there can be no doubt that he was influenced, to a considerable degree, by the emotions generated by the deceased’s conduct. The nature of any wrongful act on the part of the deceased, and the nature of the offender’s responses, will always be relevant to the range of possible sentences for the offence of manslaughter. That is so even if the case is one of manslaughter by dangerous and unlawful act.
    
22. There are a number of difficulties with the sentence imposed by the Court of Appeal. If their Lordships were troubled by the understandable lack of information regarding the petitioner’s background, they could, and should, have obtained further material, including perhaps a pre sentence report of some kind.
    
23. In addition, the petitioner’s willingness to accept a verdict of manslaughter, rather than have the matter remitted for a new trial, entitled him to some credit. At the very least, it contributed towards the avoidance of a retrial. That, coupled with his remorse, entitled the petitioner to be treated as though he had pleaded guilty, before the Court of Appeal, to manslaughter. The Court of Appeal did not refer to that matter.
    
24. Our attention has been drawn to other sentences imposed for manslaughter. The petitioner relied in particular upon The State v Priya Darshani where a sentence of two years imprisonment, wholly suspended, was imposed.
    
25. Ms Prasad very fairly acknowledged that the Court of Appeal’s reasons for sentence raised a number of concerns. She proffered the suggestion that the figure of seven years may have been chosen simply because it coincided with the recommended minimum term put forward by the trial judge. If that were the case, that course would have little to commend it. It must be said, however, that there is nothing to support that suggestion.
    
26. When asked what the attitude of the State would be to a sentence of say, four years, if this Court were satisfied that the Court of Appeal had fallen into error in fixing the sentence of seven years, and also satisfied that the requirements of s 7(2) of the Supreme Court Act had been met, Ms Prasad indicated that the State would have no objection to such a sentence.
    
27. There are, in ouw, sufficient concerns about the manner in which the petitietitioner was sentenced by the Court of Appeal, and the sentence of seven years itself, to make it appropriate to grant special leave in this case. We would further reduce the sentence imposed upon the petitioner.
    
28. We have regard to the maximum penalty prescribed for the offence of manslaughter, which is life imprisonment. We also have regard to the circumstances of this particular offence, including the fact that it was committed in circumstances of high emotion and threatening behaviour by the deceased. We take into account the youth and personal circumstances of the offender, and the fact that he had no prior convictions for any offence. We also take into account his remorse, and his willingness to accept a verdict of manslaughter rather than put the State to the cost of a new trial. In our view, the appropriate sentence for this offence is four years commencing from 16 March 2006.
    
29. The orders of the Court will be:
    

1. Special leave to appeal against sentence is granted.




2. The appeal is allowed.




3. The sentence of seven years imprisonment commencing on 16 March 2006 imposed by the Court of Appeal is set aside.




4. A sentence of four years imprisonment commencing on 16 March 2006 is substituted.




Hon Justice Keith Mason
Judge of the Supreme Court




Hon Justice Robert French
Judge of the Supreme Court




Hon Justice Mark Weinberg
Judge of the Supreme Court




Solicitors:
Petitioner in Person
Office of the Director of Public Prosecution, Suva for the Respondent