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State v Narayan - Sentence [2015] FJHC 588; HAC166.2013S (14 August 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 166 OF 2013S

STATE

vs

NARESH NARAYAN

Counsels : Mr. M. Delaney and Mr. M. Vosawale for State
Mr. J. Waqainabete and Ms. S. Prakash for Accused
Hearings : 3 to 7, 10 and 11 August, 2015
Summing Up : 13 August, 2015
Judgment : 13 August, 2015
Sentence : 14 August, 2015

SENTENCE

1. On 13 August 2015, in a judgment delivered by the court, you were found guilty and convicted on the following information:
   

COUNT ONE

Statement of Offence

ARSON: Contrary to section 362 (a) of the Crimes Decree 44 of 2009..

Particulars of Offence

NARESH NARAYAN, on the 25th day of March 2013, at Suva in the Central Division, wilfully and unlawfully set fire to his dwelling house.

COUNT TWO

Statement of Offence

ARSON: Contrary to section 362 (a) of the Crimes Decree 44 of 2009.

Particulars of Offence

NARESH NARAYAN, on the 25th day of March 2013, at Suva in the Central Division, wilfully and unlawfully set fire to the dwelling house of MOHAMMED AZMAT ALI.

COUNT THREE

Statement of Offence

MURDER: Contrary to section 237 of the Crimes Decree 44 of 2009.

Particulars of Offence

NARESH NARAYAN, on the 25th day of March 2013, at Suva in the Central Division, murdered KESHNI NARAYAN.

COUNT FOUR

Statement of Offence

MURDER: Contrary to section 237 of the Crimes Decree 44 of 2009.

Particulars of Offence

NARESH NARAYAN, on the 25th day of March 2013, at Suva in the Central Division, murdered PARMESH NARAYAN.

COUNT FIVE

Statement of Offence

MURDER: Contrary to section 237 of the Crimes Decree 44 of 2009.

Particulars of Offence

NARESH NARAYAN, on the 25th day of March 2013, at Suva in the Central Division, murdered KHUSBOO NARAYAN.

2. The brief facts were as follows. On 25 March 2013, you were 48 years old. You were married to Keshni Narayan, aged 48 years old. You two had two children, Parmesh Narayan aged 23 years old and Khusboo Narayan aged 25 years old. You and your family resided at Nanuku Settlement in Vatuwaqa. Your house was made of timber and corrugated iron. You had a canteen attached to your house, from which you sold groceries, household items, gas cylinders and kerosene.
   
3. You have been a patient at St.Giles Hospital since 1995, and you were suffering from a mental illness identified as schizophrenia paranoid type. At times, you suffered from delusions that others were trying to harm you, and this included your family members. At times, you thought your wife was having extramarital affairs, and she and your children were trying to harm you. Medical records from the hospital showed these delusions were not supported by facts. However, your condition was controlled through medication provided by St.Giles Hospital.
   
4. On 25 March 2013, you thought your wife was bringing another man to your house to replace you. Late in the evening, you poured kerosene in your house, while your wife and two children were sleeping in the bedroom. You then set fire to your house. You did not warn your wife and children to get out of the house. You walked out the front door, then locked the same and the front door burglar grill with a chain and padlock. Your house was now engulfed in flames.
   
5. You heard your wife called out for help. But you did nothing. You ran away. The fire from your house spread and partly burnt Mohammed Azmat Ali's house. Your wife and children were burnt to death, as a result of the fire you started. Although you suffered from a mental illness, nevertheless you knew the nature and quality of your conduct; you knew it was wrong and you had control over your conduct.
   
6. I will start with the "murder" charge, as it is more serious then "arson. In State v Joeli Masicola, Criminal Case No. HAC 081 of 2014S, High Court, Suva, I said the following, "...The offence of "murder" (count no. 1) is often said to be at the top of the criminal calendar. To preserve human life is a fundamental objective in preserving and maintaining the wellbeing of our society. Our lawmakers had prescribed a mandatory penalty of life imprisonment for those found guilty of murder. The court is empowered "to set a minimum term to be served before a pardon may be considered" (Section 237 of the Crimes Decree 2009). A pardon may only be granted by His Excellency The President of the Republic of Fiji (Section 119 of the 2013 Fiji Constitution). Minimum terms for murder had been set between 26 to 11 years imprisonment, depending on the mitigating and aggravating factors: Waisale Waqanivalu v The State, Criminal Appeal No. CAV 005 of 2007, Supreme Court, Fiji; The State v Navau Lebobo, Criminal Case No. HAC 016 of 2002, High Court, Suva: State v Anesh Ram, Criminal Case No. HAC 124 of 2008, High Court, Suva and State v Tukana, Criminal Case No. HAC 021 of 2009, High Court, Lautoka..."
   
7. I will now consider the "arson" charge. In State v. Atunaisa Raralevu, Criminal Case No. HAC 026 of 2013S, High Court, Suva, I said the following, " "Arson", as an offence, is viewed seriously by the law makers of this country. It carried a maximum penalty of life imprisonment. Previous case laws had set a tariff between 2 to 4 years imprisonment (see Kelemedi Lagi & Others v State, Criminal Appeal Case No. HAA 0004 of 2004S, High Court, Suva, which was endorsed by the Fiji Court of Appeal in Niko Lesu and Sunia Vosataki v State, Criminal Appeal No. AAU 058 of 2011). However, the Fiji Court of Appeal, in Damodar Naidu & Another v Reginam, Fiji Law Report, Vol 24, 1978, pages 93 to 106, approved a sentence of 7 years imprisonment for accused no. 1 and 10 years imprisonment for accused no. 2, for burning down a number of shops in Rakiraki Town, in May 1977. Of course, the final sentence will depend on the mitigation and aggravating factors."
   
8. In this case, the aggravating factors, were as follows:
   
   • (i) Domestic Violence Offence. Your offending was the worst type of domestic violence ever. Keshni Narayan, your wife, choose to spent her life with you. She married you, and with you, she brought into the world two children, Parmesh Narayan, your 23 year old son, and Khusboo Narayan, your 25 year old daughter. Although you had been suffering from a mental illness since 1995, and was receiving treatment from St.Giles Hospital, you knew the nature and quality of your conduct, knew that your conduct was wrong and had control over the same, at the material time. You wrongly thought that your wife was having an affair, and that your children were against you. You deliberately choose to take their life on 25 March, 2013, by burning down your house, when your wife and children were sleeping in their bedroom. You did not wake them up to get them out of the house. You fled through the front door, and locked the same with a chain and padlock. Your wife called out for help, but you ignored her, and continued to flee from the crime scene. Your wife and two children were burnt to death in the fire. What you did to your wife and children was inexcusable. You will have to pay for your crimes, with the loss of your liberty.
     
   • (ii) Your offending against your wife and children showed you had no regard for their right to life, when you took the same. You had no regard for your children's right to grow up and have families of their own. In fact, you deliberately denied yourself the right to have grandchildren. For causing the deceaseds these miseries, you must not complain when your liberty is taken away.
     
   • (iii) Through your actions, you had burnt down your neighbour's house, that is, Mr. Mohammed Azmat Ali's house. He lost $35,000 worth of damage to his properties.
     
9. The mitigating factors were as follows:
   
   • (i) At the age of 49 years, this was your first offending;
   • (ii) You had been remanded in custody since 8 April 2013, that is, 2 years 4 months 6 days ago.
     
10. I will start with the "murder" charges, as they are the more serious ones. I start with Count No.3. There is only one sentence for murder, and that is, mandatory life imprisonment. On the minimum term to be served before a pardon may be considered, I start with 22 years imprisonment. I add 7 years for the aggravating factors, making a total of 29 years imprisonment. I deduct 2 years 5 months for time already served while on remand, leaving a balance of 26 years 7 months. For being a first offender at 49 years old, I deduct 1 year 7 months, leaving a balance of 25 years. On Count No.3, I sentence you to the mandatory life imprisonment, with 25 years minimum term to be served before a pardon may be considered.
    

11. I repeat the above process and sentence for Count No.4 and 5.

12. On Count No.1, I start with a sentence of 4 years imprisonment. I add 3 years for the aggravating factors making a total of 7 years imprisonment. I deduct 3 years for the mitigating factors, leaving a balance of 4 years imprisonment. On Count No.1, I sentence you to 4 years imprisonment.

13. I repeat the above process and sentence for Count No.2.

14. The summary of your sentences are as follows:

15. Because of the principle of totality of sentencing, I direct that all the above prison sentences be made concurrent to each other, that is, a final sentence of a mandatory life imprisonment for the accused, with a concurrent minimum term of 25 years to be served, before a pardon may be considered.

16. Mr. Naresh Narayan, for murdering your wife and two children and for setting fire to your house and Mr. Mohammed Azmat Ali's house on 25 March 2013, at Suva in the Central Division, I sentence you to the mandatory life imprisonment, with 25 years imprisonment to be served, before a pardon may be considered by His Excellency The President of the Republic of Fiji.

Salesi Temo

JUDGE

Solicitor for State : Office of the Director of Public Prosecution, Suva.

Solicitor for Accused : Legal Aid Commission, Suva.