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State v Sharma - Sentence [2011] FJHC 232; HAC045.2008 (27 April 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No.: HAC 045 of 2008

BETWEEN:

STATE

AND:

SACHINDRA NAND SHARMA s/o Sada Nand

Counsels : Mr. J. Daurewa for State
Ms. N. Nawasaitoga for Accused

Date of Sentence : 27th April 2011

SENTENCE

[1] The Accused above named was charged by the Director of Public Prosecution for
Attempted Murder, Act with intent to cause grievous harm and Arson. After the trial the assessors unanimously found him guilty on all three counts. After carefully considering the evidence and the verdict of the assessors this Court found the Accused SACHINDRA NAND SHARMA guilty to all three Counts.

[2] Subsection 214 (a) of the Penal Code (Cap 17) reads as follows:

"Any person who – (a) attempts unlawfully to cause the death of another is guilty of a felony, and is liable to imprisonment for life."

[3] Considering the tariff to the offence, In State v Manieta Navonovono CA
HAC0017 of 2001L, Govind J stated that "apart from punishment for this crime the Courts must sternly sentence offenders to deter others." This was approved of by Winter J in State v Ledua [2004] HAC 003/04 24 June 2004.

[4] In State v Ledua [2004] HAC 003/04 24 June 2004, the accused was sentenced to
10 years imprisonment for attempting to murder his daughter with a bayonet. His appeal against sentence to the Fiji Court of Appeal was dismissed.

[5] In State v Swamy [2007] FJHC 78; HAC029S.06 (29 November 2007), the accused
pleaded guilty to 3 counts of attempted murder. The facts were that he had struck his mother and two others on the face, head, and neck with a chopper. Shameem J (as she then was) referred to Prasad v State (ante) and took the same starting point of 9 years. Her Ladyship added 2 years for the aggravating factors, namely, the degree of premeditation, the use of a dangerous weapon, the lasting injuries on the victims, and the betrayal of trust. For the guilty plea, a two year reduction was given, with the ultimate sentence being 9 years imprisonment.

[6] In Prasad v State [2008] FJCA 48; AAU111.2007S (8 August 2008), Goundar J,
sitting as a single judge of the Court of Appeal, found that a sentence of 8 years imprisonment of a husband who had attempted to murder his de facto spouse by tying her to a tree and then setting her alight, was within the tariff for attempted murder. In the High Court, the sentencing judge had chosen 9 years as his staring point. When the appeal came before the Full Court of the Court of Appeal, the sentence was reduced from 8 years to 7 years, to account for the time in remand prior to pleading guilty.

[7] In Waqanivalu v State [2008] FJSC 44; CAV0005.2007 (27 February 2008), the
Supreme Court refused special leave to appeal against the sentences imposed by the High Court and upheld by the Fiji Court of Appeal. The petitioner had been convicted for 5 Counts of murder and one of attempted murder. For the attempted murder charge, he was sentenced to 10 years imprisonment.

[8] In State v Sharma [2009] FJHC 62; HAC045.2008 (4 March 2009), Singh J
sentenced the accused to 11 years in prison. In sentencing, His Lordship cited State v Rajendra Samy HAC 029S.06 and State v Bobby Hemant Prasad HAC 52 of 2007, and said that "the usual starting point for attempted murder is a nine year prison term."

[9] Considering above cases the tariff to attempted murder can be considered between
8 years to 11 years. Considering the way you planned the offence and execution of the plan, I commence at 10 years.

[10] I consider the aggravating factors:

(a) It's a well planned and executed offence.

(b) You have punched on the face of the victim Poonam Premika Sharma

(c) You have stabbed several times on the victim Poonam Premika Sharma.

(d) You tried to put her into the burning fire.

(e) Three houses were burnt to ashes.

(f) Another victim Krishneel Prasad was seriously if not fully burnt.

(g) You made three families homeless.

(h) You claim that you are the President of Ramayan Mandali (prayer group) of

Vatuwaqa and you are a preacher of that group. You have submitted this as a mitigating factor but considering the concepts of Ramayan written by Valmiki which teaches Humanity about the science of living. Especially the main character of Ramayan was Lord Rama. He preached and practiced to be faithful to his own wife. This entire incident happened because of your fatal attraction towards another married woman.

Considering all above aggravating factors I increase your sentence by 9 years. Now your sentence is 19 years imprisonment.

[11] Considering the following mitigating factors:

(a) You are married with two children.

(b) You are the sole breadwinner.

(c) You are involved in Social services.

Considering above mitigating factors I reduce 3 years from your sentence. Now your sentence is 16 years imprisonment.

[12] Section 224 (a) of the Penal Code reads as follows:

"Any person who, with intent to maim, disfigure or disable any person, or to do some grievous harm to any person, or to resist or prevent the lawful arrest or detention of any person-

(a) unlawfully wounds or does any grievous harm to any person by any means whatsoever; is guilty of a felony, and is liable to imprisonment for life, with or without corporal punishment."

[13] The tariff for Act with Intent to Cause Grievous Harm was stipulated in the case of State v Eparama Nagalu HAC 122 of 2008 where his Lordship Mr. Justice Temo adopted the tariff set out in the case of State v Maba Mokobula Criminal Appeal No. HAA 52 of 2003S as between 6 months and 5 years imprisonment.

[14] Considering the nature of the offence especially you have caused life time impairment to Krishneel Prasad therefore I commence your sentence at 4 years imprisonment.

[15] Considering the aggravating factors as discussed about I increase your sentence by 5 years. Now your sentence is 9 years imprisonment.

[16] Considering the mitigating circumstances discussed above I reduce 3 years from your sentence. Now your sentence is 6 years imprisonment.

[17] Section 317 (a) of the Penal Code states as follows:

"Any person who willfully and unlawfully sets fire to-

(a) any building or structure whatsoever, whether completed or not; is guilty of a felony, and is liable to imprisonment for life."

[18] The tariff for Arson was discussed in the case of State v Kitione Bagasau Malugu HAC 48 of 2008 where his Lordship had adopted the tariff as between 2 and 4 years imprisonment.

[19] Considering the nature of the offence because of you all 3 dwelling houses were burnt. I commence your sentence at 4 years imprisonment.

[20] Considering the aggravating factors I increase your sentence by 5 years. Now your sentence is 9 years imprisonment.

[21] Considering the mitigating circumstances I reduce 3 years from your sentence. Now your sentence is 6 years imprisonment.

[22] Your total sentence is 28 years imprisonment. After carefully considering all your mitigating circumstances this Court makes an order to implement all your sentence concurrently.

[23] Section 18(1) of the Sentencing & Penalties Decree 2009 which provides as follows:

"Subject to sub-section (2), when a court sentences an offender to be imprisoned for life or for a term of 2 years or more the court must fix a period during which the offender is not eligible to be released on parole."

[24] Considering the above section and your act the Court orders 14 years as non
Parole period.

[25] Summary:

Attempted Murder – 16 years.

Act with intent to cause grievous harm –6 years.

Arson – 6 years.

The entire above sentence will be implemented concurrently with a non parole period of 14 years.

[26] You have 30 days to appeal to Court of Appeal.

S Thurairaja
Judge

At Suva

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