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State v Chand [2004] FJHC 379; HAC0004.2004L (25 February 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC0004 OF 2004L

THE STATE

v.

HEMANT CHAND
s/o Moti Chand

Mr. S. Qica for the State
Mr. G.P. Shankar for the Accused

Hearing: 13, 14, 18 & 19 October 2004
Sentence: 25 October 2004

SENTENCE

Hemant Chand, by the unanimous opinion of the three assessors you have been found guilty after trial of wrongful confinement and manslaughter. I have concurred with the opinion of the assessors and you have been convicted accordingly. This is your sentence.

The facts briefly stated are that on the 31^st day of January 2002, you had brought 4 passengers in the carrier you were driving from Tavua to Lautoka Hospital. Three of those passengers were returning with you in your carrier from Lautoka to Tavua. You and your passengers stopped at a friend’s place and drank grog for a period of time, following which, you continued on towards Tavua. When in the vicinity of the Varavu Muslim School, you saw 2 Fijian girls on the road and you stopped your carrier. You asked the girls if they wished to drink beer and after consultation, they agreed. The girls were Elenoa Sadria and Titilia Saro.

The girls got into your carrier registered number CL 136. They got into the back of the carrier where Ablesh Chand was seated. Your other 2 passengers, Sashi Nand Sharma and Sachindra Prasad were seated in the front of the carrier with you.

The girls told you where beer could be purchased and you traveled to that shop and purchased 7 bottles of beer. You then conveyed the group along the Nadhari Road about 1 kilometre from the Kings Road and drank beer under a mango tree.

When the 7 bottles of beer (big bottles) had been consumed, Elenoa Sadria, Ablesh Chand and you went to the shop and purchased a further 4 bottles of beer. You were not drinking beer but continued to drink grog.

When one bottle of beer remained, Elenoa Sadria, went into the cane field adjacent to the mango tree with Ablesh Chand and they there had sexual intercourse before returning to join the group. When the beer was finished, the girls appeared drunk and sought a lift in the carrier on the basis that they would be dropped at Nadhari junction, that is the junction of Nadhari Road and Kings Road. Both girls got into the rear of the carrier again with Ablesh Chand.

When you approached the intersection of Nadhari Road and Kings Road, you slowed your carrier. Elenoa Sadria was able to get off the carrier as she was sitting on the tail gate. You then changed gear and accelerated away towards Tavua. Ablesh Chand banged on the roof and Titilia Saro called out. You ignored the signals. Titilia Saro then alighted from the carrier whilst it was moving and fell to the road. Ablesh Chand again banged on the roof of your vehicle and your passengers urged you to stop. You again changed gear and accelerated away from the scene. Titilia Saro fell to the road about 50 metres from Elenoa Sadria who ran to her. Titilia Saro was obese and Elenoa Sadria was unable to move her. She was unconscious and was bleeding from her nose and commenced to vomit. Elenoa Sadria sought assistance and ultimately Titilia Saro was moved off the road to an adjacent compound where she was made to rest during the night. The next morning, the police were called as no carrier was available and she was conveyed to Lautoka Hospital. She died on the 5^th February 2002 and the subsequent post mortem examination revealed that she died of extensive sub-dural hemorrhages.

You continued on to Tavua and despite urging from your passengers to report the matter to the police, you did not do so.

In mitigation, it is submitted that you are 24 years of age, having been born on the 19^th May 1980. It is submitted that you have been an asthmatic since birth and that led to you dropping out of school in class 8.

You have legally married Priya Pritika Devi and your religious marriage is to be held on 12 December 2004. You no longer drive a carrier and are now employed by Nadi Plumbing Works.

You counsel submits that a suspended sentence is an appropriate penalty in the circumstances.

The range of penalties in this country for manslaughter are enormous from a suspended sentence to 12 years imprisonment with the maximum penalty being life imprisonment.

Your cavalier behaviour in causing the wrongful confinement and death of Titilia Saro deprives you of the right to anything other than an immediate custodial sentence.

Your callous behaviour in leaving her on the road and not stopping to render assistance causes the starting point of your sentence to be 5 years imprisonment.

Your youth and your previous good character enable a reduction in the term of your sentence to 3 years. You are accordingly sentenced to imprisonment for 3 years for the charge of manslaughter and 7 months for the charge of wrongful confinement, both sentences are to be served concurrently and are to date from today.

JOHN CONNORS
JUDGE

At Lautoka
25 October 2004