CRIMINAL CASE NO. 85 OF 2008
For persons of 18 or over at the time of the offence, the sentence for murder is prescribed by law. It is life imprisonment and that is therefore the sentence which I have already passed on the 1st accused, who was 18 at the time of the murder of which the jury convicted him.
The rest of you accused were each under 18 at the time when the deceased was killed. For his death, the jury has found you, the 3rd accused, guilty of manslaughter, and you, the 2nd, 4th and 5th accused guilty of murder. Manslaughter is an offence that can be committed in a very great variety of circumstances. The maximum penalty for manslaughter is life imprisonment, as a sentence permitted although not prescribed by law. In other words, it is a discretionary rather than mandatory life sentence.
As I have already said, a life sentence is the sentence prescribed by law for murder where the offender was 18 or over at the time of the offence. Where the offender was under 18 at the time of the offence, the court has a discretion whether to pass a life sentence or for a shorter term, fixing that term.
None of you has any previous conviction. I have sent for and received background reports on each of you. I have considered each of these reports, looking for whatever can be taken in favour of each of you, and I have taken into account everything urged on behalf of each of you by your counsel.
Any homicide, involving as it does the unlawful killing of a human being is of course a very serious crime, even where the homicide is the lesser offence of manslaughter and especially when the homicide is murder.
The unlawful killing in this case was in the course of a planned revenge attack by a group of persons, some of them armed with metal pipes, on an unarmed group of persons, one of whom, the deceased, was caught and beaten to death with a metal pipe or metal pipes. Each of you was a participant in the joint enterprise pursuant to which this attack was carried out and the deceased killed. Like the 1st accused, you, the 2nd, 4th and 5th accused, so participated with such intent as to be guilty of murder. You, the 3rd accused, so participated in a state of mind as to be guilty of manslaughter only.
As to the three accused whom I now have to sentence for murder, I should say this at once. Having regard to the evidence at the trial, I consider the 5th accused’s role less serious than that of the 2nd accused and the role of the 4th accused less serious than that of the 5th accused.
Turning to you, the 3rd accused, I have taken into account that your role was to help locate the group to be attacked and that, having seen and heard you in the witness-box, the jury were not prepared to find that your state of mind was such as to make you guilty of murder. In arriving at the appropriate sentence for the offence of manslaughter you have been found guilty of in these circumstances, I have taken into account everything urged on your behalf, particularly your youth at the time and your previous clear record. None of these are matters for a specific discount from a starting point. They are factors to be taken into account in arriving at the appropriate sentence. All things considered, I think that the appropriate sentence for you, the 3rd accused, is 5 years’ imprisonment. I sentence you to 5 years’ imprisonment.
Turning to you, the 2nd, 4th and 5th accused, I will not sentence any of you to life imprisonment. I will sentence each of you to a fixed term. I have taken into account everything urged in favour of each of you. These things include your youth at the time and your previous clear records. None of these are matters for a specific discount from a starting point. There are factors to be taken into account in arriving at the appropriate sentences for each of you.
The evidence at the trial pointed to you, the 2nd accused, having physically attacked the deceased although there is nothing to suggest that you struck a fatal blow. Such evidence pointed to you, the 5th accused, were present and held a metal pipe. And such evidence pointed to you, the 4th accused, helped to locate the group to be attacked.
On the jury's verdicts each of you played your role as a participant in a joint enterprise to carry out a revenge attack, and did so in the state of mind that made each of you guilty of murder. I bear it very much in mind that the evidence at the trial suggests that there were others who were the prime movers in this joint enterprise who were more active in carrying it out to its fatal and tragic conclusion. It is by bearing those facts in mind that I am able to sentence you less severely than I would otherwise have done. But, even bearing those facts in mind and taking everything urged on behalf of each of you into account, my duty binds me never to lose sight of the fact that it was murder which you committed. A youth is dead.
2nd accused, I sentence you to 20 years' imprisonment. 4th accused, I sentence you to 16 years' imprisonment. 5th accused, I sentence you to 18 years' imprisonment.
Application for leave to appeal against convictionis dismissed. Please refer to CACC27/2009 dated 20 January 2011