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State v Khan [2004] FJHC 467; HAC0006.2003L (23 September 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC0006 OF 2003L

THE STATE

V

MOHAMMED SHAFIL KHAN
s/o Shameel Khan

Mr. K. Tunidau for the State
Ms. J. Nair for the Accused

Hearing: 30 August 2004
Sentence: 23 September 2004

SENTENCE

Mohammed Shafil Khan, you have committed the crimes of abduction, unnatural offence and murder. This is your sentence. The information reads:

FIRST COUNT

Statement of Offence

ABDUCTION: Contrary to section 153 of the Penal Code, Cap. 17.

Particulars of Offence

MOHAMMED SHAFIL KHAN s/o Shameel Khan on the 16^th day of January, 2003 at Nadi in the Western Division, with intent that an unmarried girl under the age of 18 years shall be unlawfully and carnally known by the said MOHAMMED SHAFIL KHAN s/o Shameel Khan took the said ASHWINI MALA SHARMA d/o Rajeshwar Prasad out of his possession and against the will of her father namely Rajeshwar Prasad.

SECOND COUNT

Statement of Offence

UNNATURAL OFFENCE: Contrary to section 175(a) of the Penal Code, Cap. 17.

Particulars of Offence

MOHAMMED SHAFIL KHAN s/o Shameel Khan on the 16^th day of January, 2003 at Nadi in the Western Division had unlawfully carnal knowledge of ASHWINI MALA SHARMA d/o Rajeshwar Prasad against the order of nature.

THIRD COUNT

Statement of Offence

MURDER: Contrary to section 199 and 200 of the Penal Code, Cap. 17.

Particulars of Offence

MOHAMMED SHAFIL KHAN s/o Shameel Khan on the 16^th day of January 2003, at Nadi in the Western Division murdered ASHWINI MALA SHARMA d/o Rajeshwar Prasad.

The facts as outlined by the prosecution and agreed to by you are that on 16 January 2003, when you were 13 years of age and the deceased, Ashwini Mala Sharma was 7 years of age, you lived as neighbours in Nasau, Nadi.

At 10.00am on 16 January 2003, the deceased left her grandmother and 2 elder sisters at Nasau River where they had been bathing and she headed for her home.

You saw the deceased walking by and you invited her to your house. The deceased ran away and you chased and caught her. You held her hand and led her into your house. She pleaded with you to be released but you refused.

Whilst inside your house, you took a knife from a table, held it against her neck and forced her to lay face down on the floor. Again, the deceased pleaded and cried to be released. You threatened her with the knife not to shout.

You then pulled down the deceased’s panty and sodomised her until you ejaculated. During this act, the deceased was shouting in agony and pleaded with you to stop but you persisted.

You then held the deceased’s neck and mouth with one hand and stabbed her hand, leg and back with the knife. You then slit her throat with the same knife and then carried her body and dumped it over a slope into the Nasau River.

The deceased died as a result of hemorrhagic shock as a result of the cut throat and multiple stab wounds.

The post mortem report confirms that the anal orifice was dilated and funnel shaped suggestive of recent unnatural sexual assault.

In your confession to the police, you said that the deceased looked beautiful to you and that you then decided to rape her. You also said in your confession that you decided to kill the deceased to avoid her reporting to anyone what you had done.

Whilst you confessed to the police once apprehended, prior to that time you had attempted to hide what you had done. You attempted to dispose off the body of the deceased in the river, you attempted to clean the blood from your bedroom and then to dispose off the cleaning towel and mat. You gave false information to those looking for the deceased and it was not until after the body was recovered from the river that you confessed to what you had done.

The crime that you have committed is horrendous and most serious. It is difficult to conceive of a more brutal act that could be committed by a 13 year old boy on a 7 year old girl. The consequences of the commission of the offences have been catastrophic on your family and of course on the family of the deceased.

At the time of the offence, you were 13 years old having been born on 17 October 1989. The provisions of the Juveniles Act [Cap. 56], therefore apply to you and sets forth a special statutory regime, which differs from that applicable to adults.

Section 31(1) of that Act provides:

“Where a juvenile is found guilty of murder, of attempted murder or of manslaughter, or of wounding with intent to do grievous bodily harm and the court is of the opinion that none of the other matters by which the case may legally be dealt with is suitable, the court may order the offender to be detained for such period as may be specified in the order, and where such an order has been made, the juvenile shall, notwithstanding anything in the other provisions of this Act, be liable to be detained in such place and on such conditions as the Minister may direct.

Section 200 of the Penal Code provides:

“Any person convicted of murder shall be sentenced to imprisonment for life.”

Section 33 of the Penal Code provides:

“Where an offence in any written law prescribes a maximum term of imprisonment of 10 years or more, including life imprisonment, any court passing sentence for such offence may fix a minimum period which the court considers the convicted person must serve.”

The resultant effect of the legislative regime is that a juvenile convicted of murder may be sentenced to detention for life but need not be. The court may impose any term of detention once having first concluded that there is no other suitable way of dealing with the matter.

Mitigation

You are now 14 years and 11 months. You were 13 when you committed these offences.

Your Social Welfare Court Report tendered in mitigation shows that you come from a poor family whose only source of income was from your father being a cane cutter. Your family included your father, mother, 2 sisters and a brother. You left school in the year 2002 and spent most of your time on your own planting vegetables which were to sustain the family needs and any surplus was to be sold to neighbours.

Your family resided previously in Talaiya, Ba until the lease expired in April 2002 when the family moved to Nasau, Nadi where these offences were committed. Your family has been forced to move from Nasau, Nadi when the neighbours burnt down your family home and your family have had a nomadic existence since that time. You have not, the report attests, been visited by your family since going into custody in January 2003 apart from the occasions of your court appearances.

You have informed the counsellors that when you were in Class 5 (1999), you were sodomised by a neighbour after being threatened with a kitchen knife and after intercourse, the offender offered you $10.00 provided you did not mention the incident to anyone. You told your mother 3 days later when you had not receive the money but your family took no action.

The report attests that you are a devout Muslim and that you place a very high value on your religion and that you strictly follow your prayers.

You have expressed a desire to continue your education notwithstanding that you were told by your parents to leave school in April 2002 when you were in class 8. You were a slow learner and at the bottom of the class at that time.

The Welfare Officers report that since being at the Boys Centre, that is since January 2003, you have displayed signs of significance improvement. You have maintained your Muslim beliefs at the centre all be it that you are the only believer there. The officers opined that your maturity has begun to flourish and there has been a marked improvement in all phases of your life.

You have told the Welfare Officers you desire to continue your education if given the opportunity and you would like to become a mechanic or something in an allied field after you have obtained some formal education.

The Welfare Officers sum up their assessments by saying that you have had a very tough life, that you have been faced with poverty, a lack of education, a bleak and uncertain future together with the trauma of having been sexually abused and a lack of parental direction as a role model in your life.

To your credit, you have been extremely well behaved at the Boys Centre and it must be concluded from the Welfare Officers Report that there is some prospect of you becoming a useful citizen at some point in the future.

I must take into account that you have pleaded guilty to these offences and that you confessed to the police officers when interviewed.

Aggravating Factors

The aggravation in these matters is self-evident. The abduction of a 7-year-old girl by you, the sodomizing of that girl at knife point and the murdering of her to avoid detection are horrendous acts.

You caused the death of the deceased with malice aforethought. You intended to kill her to avoid detection for the offences you had at that time already committed. It is impossible to envisage the trauma, pain and suffering that must have been experienced by the deceased as a result of your callous behaviour.

The Law

The relevant principles and appropriate comparative cases have been considered by the High Court in State v Neori Tamanivalu – HAC0001 of 2003S and by the Court of Appeal in that same case on appeal (Cr. Appeal AAU0035 of 2003S).

The Court of Appeal concluded that the starting point fixed by Madam Justice Shameem in Tamanivalu of 15 years was not challenged but that such a starting point should have taken into account a discount for youth.

Life Imprisonment

Section 31 of the Juveniles Act gives to the courts a discretion to impose a sentence appropriate to the offender and to the nature of the offences. The court must however, first be satisfied that no other legal alternative exists. There is no other alternative in this case. A custodial sentence is the only suitable option.

In Tamanivalu, Madam Justice Shameem said:

“There is no doubt at all that there are cases which must lead to life imprisonment, even where the offender is a juvenile. In this category would fall cases of planned killing, gratuitous violence, and the killing of the weak and especially vulnerable. Killing accompanied by sexual assault or mutilation of the victim would also fall into this category, deterrence, denunciation and the need to protect the public outweighing considerations of rehabilitation.”

The Court of Appeal did not consider this issue.

The legislation gives to this court, a discretion in sentencing juveniles. The court must however of necessity give consideration to the fact that persons under the age of 18 are immature and do not have the same intellectual and moral understanding as an adult, the effect of imprisonment on a young offender and the advice that long terms of imprisonment should be avoided with respect to juveniles. These considerations need to be balanced against societies interest of the need to hold offenders such as you accountable for what you have done.

It is difficult to envisage a series of offences where the valid concerns of society could more properly be reflected in detention for life.

Whilst acknowledging that it is indeed a balancing act, when considering the seriousness of the offences, the aggravating features the matters put to the court in mitigation and your welfare as a juvenile, I find it impossible to exercise that balancing act, to produce any result other than an order that you be detained for life.

Conclusion

With respect to the charge of murder, I sentence you to detention for life.

With respect to each of the other counts, which I have taken into account as being aggravating factors in sentencing you for the murder of Ashwini Mala Sharma, I sentence you to a period of detention for 2 years with respect to the charge of abduction and to a period of detention for 7 years with respect to the charge of unnatural offence.

Whilst acknowledging that by virtue of the provisions of section 31 of the Juveniles Act, the terms of your detention are a matter for the Minister, I do recommend, in the light of the Social Welfare Report, that you be given vocational training and education, both whilst you are in the Boys Centre and after any transfer to an adult facility.

I hope that the education you acquire and the skills that you are taught will result in you, ultimately, becoming a useful member of society when you have served your punishment.

JOHN CONNORS
JUDGE

At Lautoka
23 September 2004