| Fiji Islands - Kishore Kumar v The State - Pacific Law Materials |
IN THE FIJI COURT OF APPEAL
CRIMINAL JURISDICTION
CRIMINAL APPEAL NO. 2 OF 1989
(Criminal Case No. 150/87)
BETW/span>
KISHORE KUMAR
s/o Paras Ram
Appellant
AND:
THE STATE
Respondent
Appellant in Person
Mr J. Semisi for the Respondent
Date of Hearing: 22 October, 1990
Delivery of Judgment: 29 October, 1990
JUDGMENT OF THE COURT
This is an appeal against a sentence of 8 years imprisonment imposed on the Appellant for the offence of manslaughter.
The Appellant contends that the sentence is harsh and excessive because the trial Judge failed to take into consideration the following
factors:-
(a) That he was a first offender.
(b) That he has shown remorse.
(c) That he has two infant children both of whom need his care and attention.
(d) That there was no pre-meditation on his part.
(e) That he was in custody for about 18 months prior to his sentence.
The facts of this case show that the Appellant, a building labourer, used to live at Nasinu with his wife and two daughters then
aged 2 and 3 years. His sexual relationship with his wife was not a happy one. He also complained that she used to quarrel with him.
During the early hours of the morning of 22 June, 1987 there was an argument between them. She refused him sex. He got very annoyed
and pressed her neck with both hands and killed her. He was 28 years of age at that time. He was arrested and charged the same day
with the offence of murdering his wife. The Appellant has been in custody ever since.
His initial trial commenced in the High Court at Suva on 16 May, 1988. Unfortunately, at the conclusion of the prosecution's case
it was discovered that a plea had not been taken from him. Consequently, on 30 May, 1988 the trial was declared a nullity and the
Appellant was remanded in custody until the next session to enable him to enter a plea to the charge. His trial commenced afresh
before another Judge on 31 October, 1988 when the Appellant pleaded not guilty to the charge of murder. All three assessors expressed
the opinion that the Appellant was not guilty of murder but guilty of manslaughter only. The learned trial Judge accepted the unanimous
opinion of the assessors and convicted the Appellant accordingly. He sentenced the Appellant to 8 years imprisonment on 23 November,
1988.
Before passentence the tria trial Judge was acquainted with the Appellant's antecedents. The Appellant had no previous convictions.
Addressing the Court in mitigation the learned counsel for the Appellant made a strong plea for leniency and asked that a suspended
sentence be imposed bearing in mind the Appellant's previous good character, his genuine remorse and the need for his infant children
to have the love and care of their only surviving parent. We are satisfied that the trial Judge took all these factors into account
before imposing the prison sentence. He was of the view that having regard to all the circumstances an immediate custodial sentence
was called for. We cannot but agree with his view although we are not unmindful of the fact that the Appellant's continued incarceration
for a long period will undoubtedly serve to enhance the distress his two infant and innocent children must be undergoing. We have
advised the Appellant to approach the Visiting Justice or the Prison Welfare Officer for help and guidance regarding custody and
care of his children.
As to the Appellant's claim that his unlawful act was not planned or pre-meditated we accept the State's response that it was for
this reason that the Appellant was not convicted of murder but only of manslaughter.
In our opinion the 8-year sentence is well within the range normally reserved for husband-killing-wife cases of manslaughter. There
are no exceptional circumstances which would justify our reducing the sentence or substituting it with a suspended one.
However, we note that neither the Appellant's counsel nor the trial Judge alluded to the fact that at the time of sentence the Appellant
had already been in prison custody for a continuous period of 17 months. It is usual for sentencing courts to indicate whether the
period in custody has been taken into account in assessing the length of sentence especially if the period has been a substantial
one as was the position in this case. In the absence of any such indication we feel that the interests of justice will be met if
we ordered that the sentence imposed on the Appellant should run from the date he was taken in custody and not from the date when
the punishment was imposed. We accordingly order that the sentence of 8 years imprisonment imposed on the Appellant should run from
the 22 June, 1987.
Sir Moti Tikaram
Justice of Appeal
Sir Ronald Kermode
Justice of Appeal
D.V. Fatiaki
Justice of Appeal
AAU0002U.89S
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