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State v Shankar [2003] FJHC 337; HAC014.2001S (4 July 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL ACTION NO. HAC014 OF 2001S

THE STATE

V

ALBERTINO SHANKAR & ANOR

Gates J.

Mr. J. Rabuku for the State
Ms J. Nair for Accused 1
Ms P. Narayan for Accused 2

4 July 2003

SENTENCE

[1] Albertino Shankar and Francis Narayan you have been found guilty by the court of the offence of murder. The sentence fixed by law for such an offence is that the convicted person shall be sentenced to imprisonment for life. There is no discretion allowed to the court in a murder case to sentence to a lesser term.

[2] It is well known that convicted persons sentenced to life imprisonment usually do not serve the full term, that is serve imprisonment for the rest of their lives. Most have their sentences reduced after serving a considerable term such as 10 or 12 years.

[3] In this case I had called for submissions from counsel on whether I should recommend a minimum period to be served under the provisions of section 33 of the Penal Code.

[4] Ms Narayan, submitting for both prisoners, informs me that the actual period of imprisonment is usually 14 years, but that the latter part is allowed to be served in the community outside of the prison walls.

[5] It is significant here that the prisoners were very young when they committed this offence. Albertino was aged 17 years 9 months. He is now 20. Francis was aged 21 at the time, and he is now 23. I keep in mind their youth.

[6] They are not from well off homes. They did not get far with their education. Albertino appears to have drifted between a home with his single mother and a home with his elderly grandfather. Francis’ home appears more stable, yet he got involved in an offence of bulk store breaking in 1999 and served a term of imprisonment of 9 months. Albertino has not previously been before the courts.

[7] Both have had casual work, but nothing of permanence or promise.

[8] Neither has shown any remorse for what they have done. Both maintain their innocence. But both were emotionally moved when asked if they had anything to say prior to sentence and in addressing the court.

[9] Mr Rabuku has made no submissions on behalf of the State on the question of whether there should be a recommendation of minimum service. Ms Narayan says the recommendation should be of 5 years only, since they have been on remand now for 2 years 3 months, equivalent to a full term of 3 years 9 months.

[10] I take that period of remand into account when arriving at the appropriate order.

[11] This was, as I said in summing up the case, a truly dreadful crime. A 34 year old Chinese lady, a Ms Tang, living alone in a flat awakens to find two men entering through her bedroom window after midnight.

[12] According to the Accused, their plan was to steal from Ms Tang. They did eventually do just that, and this might have remained a case of house breaking. But the two Accused, commencing with Albertino, then raped Ms Tang. Francis followed after and raped her also. Each Accused raped her for a second time whilst they remained in the flat. They are not charged with rape, but I take what they said they did into account as an aggravating feature of this murder case.

[13] But to avoid any struggling and any chance of Ms Tang shouting out for help, before each raped her a second time, they taped her ankles with scotch tape or masking tape and bound up most of her face with tape, and tied her hands behind her back with wire.

[14] All of this account comes from the prisoners’ own admissions made to the police. The Accused then discussed in front of Ms Tang what they were going to do with her. Though there was some initial reluctance on the part of Francis, both agreed eventually that she would have to be killed because she would recognise them again. It is likely she knew Albertino as a person who lived downstairs at the same block of flats.

[15] Albertino brought a piece of rope from another room wound it several times around the victim’s neck, and strangled her. Francis held her legs. She struggled, until she ceased breathing and died.

[16] Just prior to the strangling, no doubt realising what the 2 Accused were deciding to do with her, Ms Tang kept pleading with them "I don’t want to die. I don’t want to die." It is not difficult to imagine the horrific ordeal that faced the victim in her final moments.

[17] Her life was taken with hardly a thought, ruthlessly, callously.

[18] The defence at one point appeared to hint at responsibility for the crime lying with one of Ms Tang’s friends.

[19] The inhabitants of Fiji must be made to feel secure in their homes. They should be able "to sleep easily", to feel secure. Housebreakers are to be deterred or at least punished. Housebreakers who go on to commit rape on the occupants, need even more severe punishment. To those who having committed those two serious crimes, go on to destroy the evidence, and to murder the occupants can expect no mercy from the courts. The courts have a duty to inflict condign punishment.

[20] But I have arrived at a recommendation for a minimum term to be served that will not destroy your lives. It will allow some hope for a fresh start when you are released. It is to be hoped that when that time comes you will indeed be able to start afresh and to make something of your lives.

[21] Accordingly you are both sentenced to life imprisonment and I recommend that you each serve a minimum term of 17 years imprisonment.

Orders accordingly.

A.H.C.T. GATES
JUDGE