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State v Aziz - Sentence [2011] FJHC 639; HAC189.2010 (7 October 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC 189 OF 2010

BETWEEN:

STATE
PROSECUTION

AND:

ABDUL AZIZ
ACCUSED PERSON

Counsel: State - Ms. T. Leweni
For Accused Person - In Person

Dates of Hearing: 26th, 27th, 28th September and 3rd October 2011
Date of Summing Up: 5th October 2011
Date of Judgment: 6th October 2011
Date of Sentence: 7th October 2011

SENTENCE

1. The accused Abdul Aziz, you are convicted of the offences of Murder and Criminal Intimidation.
   
2. The facts of the case were that, when the deceased Abdul Rauf was coming with Samina Bibi and your daughter Gulnaz Bibi, you went and struck him with the cane knife causing his death. Thereafter you chased after Samina Bibi threatening to chop her.
   
3. The offence of Murder carries a mandatory sentence of life imprisonment. However, in terms of section 18(1) of the Sentencing and Penalties Decree of 2009, the court must fix a non-parole period during which the accused is not entitled to be released on parole.
   
4. Counsel for State submitted to court, they urge the court not to fix a non-parole period considering the age and the previous good character of the accused.
   
5. Section 18(2) of the Sentencing and Penalties Decree 2009 says:
   

"If a court considers that the nature of the offence, or the past history of the offender, make the fixing of a non-parole period inappropriate, the court may decline to fix a non-parole period under sub-section (1)".

6. The accused is 65 years old. He has no previous convictions within the last 20 years. He struck the deceased once which caused the fatal injury.

7. Considering the above I find that it is inappropriate to fix a non-parole period. Therefore acting in terms of Section 18(2) of the Sentencing and Penalties Decree, I decline to fix a non-parole period.

8. I sentence you to life imprisonment.

9. In Count No.2 you were charged and convicted for Criminal Intimidation, which carries a maximum penalty of 5 years imprisonment as charged.

10. If the threat is to cause death or grievous hurt the maximum punishment prescribed in section 375(2) of the Crimes Decree 2009 is imprisonment for 10 years. However the accused is charged under section 375(1)(a) where the maximum punishment prescribed is 5 years imprisonment.

11. After striking Abdul Rauf with the knife, you chased Samina to chop her with the cane knife but you failed as Samina went inside Amina's house and locked herself.

12. I have not been referred to tariff for this offence.

13. The case of Basa vs State (2007 RJHC 48, HAA 18 of 2007 (6 August 2007), 18 months imprisonment was affirmed by the High Court for the offence of Criminal Intimidation.

14. The case of Pauline Ulu vs The State (2006) RJHC 54; HAA 080 of 2006), where the accused threatened his father with a cane knife and was sentenced to 18 months imprisonment, the sentence was affirmed by the High Court.

15. In this case the aggravating factors are, that you chased the victim to chop her with a cane knife after striking Abdul Rauf with the same knife.

16. You did this without any provocation.

17. As an unrepresented accused you did not submit any mitigating factors. However I consider that you are 65 years of age, when deciding on your sentence. You have no previous convictions for last 20 years.

18. Considering the above circumstances of offending, aggravating and mitigating factors, I sentence you to imprisonment for 18 months.

19. You have 30 days to appeal.

Priyantha Fernando
Judge

At Suva
07 October 2011