Home | Databases | WorldLII | Search | Feedback High Court of Fiji

State v Ashwin [2004] FJHC 162; HAC0027J.2003S (12 October 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC0027 OF 2003S

STATE

v.

AKASH ASHWIN

Mr. W. Kuruisaqila & Ms K. Bavou for State
Ms B. Malimali for Accused

Hearing: 4th October 2004
Sentence: 12th October 2004

SENTENCE

Akash Ashwin, you have been found guilty of manslaughter on the ground that you were provoked into killing your stepfather Anil Prasad by stabbing him through the chest on the 30th of July 2003.

The facts of this case are tragic. At the age of 12, the man you considered to be your father left the house because of the infidelity of your mother. According to your evidence, your mother committed such infidelity whilst you were in the house. Thereafter, the deceased Anil Prasad showed you no love and affection, and your mother appears to have done nothing to help you to adjust to the change in family circumstances.

Your stepfather’s dislike for you, his and your mother’s neglect of your educational and emotional needs, and the lack of communication between you and the rest of your family, led you to become withdrawn, hostile and unstable. It is clear from your evidence that you saw your stepfather as the cause of your unhappiness. It is also clear that your stepfather, over the years manipulated the loss of items at home and caused the family to distrust you and believe you to be a thief. There is no expert evidence before me as to the psychological effect of all these events on you, but in the light of all these circumstances, it is fair to assume that you are an angry and deeply disturbed young man.

The tariff for manslaughter in Fiji is between a suspended sentence, where the violence used is minimal and the provocation great and 10 or 12 years imprisonment for bad cases of manslaughter. I class this offence as one which falls in the middle of the range. Whilst the stab wound was inflicted with great force, with a dangerous weapon, the degree of provocation was also significant. I pick as my starting point 3 years imprisonment. In your favour is your good character, (I disregard the absolute discharge for the threat on the deceased) and your difficult childhood and youth which have been outlined in mitigation by counsel. In particular I take into account the provocation on the morning of the offence and the insensitive conduct of the deceased and your mother. I reduce the sentence to 1 year.

Aggravating features include the evidence of thought in the choice of weapon, the fact that the deceased was asleep at the time, the lapse of time before you stabbed the deceased and the use of a sharp knife to inflict the wound. For these factors I increase the sentence by 3 years to 4 years imprisonment. I deduct one year for the year you have spent in custody and I sentence you to 3 years imprisonment. A 3 year term cannot be suspended under section 29 of the Penal Code. However, if the sentence I had arrived at could have been suspended in law, I would not have suspended it. Whilst hearing your evidence I was left with the impression that you blame your stepfather for all your problems and inadequacies. It is time to take responsibility for your own actions, and to accept that we are all accountable for what we do in this world. In your case, a custodial sentence is a part of that accountability.

Nazhat Shameem
JUDGE

At Suva
12th October 2004