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State v Faiyaz [2011] FJHC 407; HAC079.2008 (22 July 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 079 OF 2008

STATE

vs

MOHAMMED FAIYAZ
s/o Mohammed Sahib

Mr. S. Qica for the State
Mr. I. Khan with Ms Q. Vokanavanua for the Accused

Date of Hearing: 21 July 2011
Date of Sentence: 22 July 2011

SENTENCE
[Manslaughter]

[1] On the 21st July 2011, the accused entered a plea in this Court to one count of manslaughter contrary to section 198 of the Penal Code, Cap. 17. He admitted having unlawfully killed Mohammed Faiyum (f/n Mohammed Allam) at Lautoka on the 24th September 2008. The accused admitted and signed a set of facts relating to the count: he was found guilty and convicted.

Facts

[2] The accused, in 2008, lived with Madam Shabreen Shariff in a de facto relationship, along with 2 children from his former marriage. The deceased was a 24 year old van driver renting a room in the accused's home at Tomuka, Lautoka.

[3] In late 2007 this accused went to New Zealand for a few months to visit relatives. While he was away Madam Shariff and the deceased entered into a sexual relationship which continued after the accused's return to Fiji, but without his knowledge.

[4] On the 22nd September 2008 the accused had heard about the affair and confronted his partner. She confessed to him that she had twice had sex with the deceased. Late in the evening of the 23rd September the accused, having obtained a kitchen knife lay in wait for the deceased who had been driving friends home after drinking grog. The accused met the deceased when he returned and he suggested that they go to Kashmir together to buy more grog. They both went in the deceased's car. After the purchase, they were returning home when the deceased had to slow his vehicle because of bad road conditions. At this juncture the accused took out the kitchen knife and stabbed the deceased once at the left chest, telling him it was because of his affairs with his wife. The deceased got out of the van and ran away. The accused looked for him in vain, and then returned home.

[5] The seriously wounded deceased was found by others who took him to the Lautoka Hospital where he died at 12.30am on the 24th September 2008. The accused was arrested and interviewed under caution. He freely admitted the homicide but said he was angry and couldn't control his anger.

[6] An autopsy revealed the cause of death to be "massive bleeding" secondary to stab wound on left anterior chest wall.

Mitigation

[7] Mr. Khan, in extensive written and oral submissions prays for leniency from this Court. The accused is now 42 years old and apart from caring for his de facto wife and two children, supports his elderly mother who has hypertension and heart problems. He is the only breadwinner of the family. Although not an admitted fact, Mr. Khan submits that the accused first suspected the affair when on a visit to Ba Hospital to seek medical treatment for his son, he saw the deceased touching his partner inappropriately.

[8] The summary of facts refers to the two having had sex only twice in the accused's absence, yet an affidavit sworn by Madam Shariff enclosed with Mr. Khan's sentencing submissions shows that she had sex with the deceased on a daily basis.

[9] The accused is of good character with no previous criminal record. He produces three testimonials from his employer, his landlord and a Hindu priest, all of whom attest to his generous and kind personality. The wife of the deceased also writes to say she has forgiven the accused.

[10] Counsel for the accused relies heavily on the principles of "cumulative provocation" and "revival of provocation" in that knowledge of the affair had incensed the accused and a build up of his anger culminated in a revival of the provocation when the two were together in the deceased's van after buying the grog in Kashmir.

The Law

[11] The maximum penalty for manslaughter is life imprisonment and the accepted tariff range can be between suspended sentences to twelve years imprisonment depending on the circumstances. The Fiji Court of Appeal observed in Kim Nam Bae (1999) AAU 15/98:

"The cases demonstrate that the penalty imposed for manslaughter ranges from a suspended sentence where there may have been grave provocation to twelve years imprisonment where the degree of violence is high and the provocation is minimal. It is important to bear in mind that this range covers a very wide set of varying circumstances which attract different sentences in different manslaughter cases. Each case will attract the appropriate sentence within the range depending on its own facts."

[12] Madam Justice Shameem said in Mani – HAC 005/2000:

"Where a weapon is used, where an attack is brutal and where the provocation has not been overwhelming, a custodial sentence is clearly called for."

[13] Recently in Labasa, Mr. Justice Goundar in Yavala – HAC 008/2009 handed down a sentence of 5 years after a guilty plea of an accused convicted of manslaughter and where the provocation was found to be "grave". The Court there was moved by the excessive violence occasioned to the victim.

[14] In this case I cannot ignore the fact that a very lethal weapon, a knife, was carried and used on the deceased at an opportune moment and in an attack by surprise.

Analysis

[15] This is an old case taking nearly 3 years to come to trial and it is remarkable that all throughout that time the accused has freely co-operated with the authorities. He was originally charged with murder and the record shows that in October 2010 he indicated that he would plead guilty to the lesser charge of manslaughter but his entreaties were not acceptable to the State. It is only in July 2011 on the eve of the trial that Mr. Khan has been able to persuade the State to reduce the charge, which has resulted in this plea of guilty. All of this of course will go to the credit of the accused.

[16] It is quite apparent that the "provocation" in this case is minimal. The Court accepts that evidence of marital infidelity, especially with a well known friend, is highly provocative but such provocation is diluted by time. The homicide in this case occurred at least 24 hours after the accused learned of the infidelity and it was after he had lain in wait for the deceased with a kitchen knife, thereby showing planning and intention. Even if Mr. Khan's revival and cumulative provocation submissions were to be accepted, then there is no evidence of a sudden impulsive act on the part of the accused, acting out of control. The facts reveal more of a calm, well thought out opportunistic attack. If there be any provocation at all, it is minimal.

[17] This offence cannot be equated, as Mr. Khan would submit, with the "one punch death by concrete" offences that often result in suspended sentences, and with minimal provocation a starting point of sentence should be in the upper range of the tariff. It is not an appropriate case in which the sentence would be suspended. The Court therefore takes as its starting point a term of eight years.

[18] For the forceful mitigation advanced on behalf of the accused – mitigation which includes:

• clear record;
  
• good character and favourable testimonials; and
  
• family devotion.
  

I deduct a term of two years from that point, leaving an interim total of six years imprisonment.

[19] The accused is obviously remorseful, having been co-operative from the beginning and having indicated a plea to the lesser offence at least 12 months ago. He entered a plea of guilty as soon as the count was reduced this week. For such remorse and plea I deduct a full third from his interim total, meaning that the accused will serve a term of imprisonment for this offence of four years. He will serve a minimum term of three years before eligible for parole.

Paul K. Madigan
JUDGE

At Lautoka
22 July 2011