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STATE v TENGUR N

2016 SCJ 291


Record No. CS 06/16

IN THE SUPREME COURT OF MAURITIUS

In the matter of:The State


v/s
Naseerudin Tengur

JUDGMENT

The accused stands charged before the Court of Assizes with the offence of
murder for having criminally, wilfully and with premeditation, killed one Khairoonessa
Tengur alias Fiya in breach of sections 216, 217 and 222(1)(a) of the Criminal Code.
The accused was assisted by counsel and he pleaded guilty after the Jury was
empanelled but prior to the opening speeches being made.
In the light of the guilty plea of the accused, I find him guilty as charged.
Sentence
The prosecution adduced evidence at the hearing for the purpose of sentencing
to demonstrate the facts and circumstances surrounding the commission of the offence.
The relevant part of the evidence consists of the medico-legal report of the deceased
and the confession of the accused given in his statements under usual warning during
the course of the enquiry.
The accused gave a detailed account of the circumstances in which he and his
two confederates had committed larceny in the house of the deceased and had killed
her. On Sunday 21 December 2008, the accused met his friends, Muhammad alias

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Gros and Amanoolah Emamdee alias Souval. Souval, an illegal taxi driver, informed
them that he had no job and had to find a place to steal from. The accused proposed
that they steal from his aunts house to which they all agreed. The accused informed
them that his aunt Fiya, was unmarried and lived alone around 200 metres from his
house at Joseph Francois Daubin Street, Valle des Prtres. On that night, Fiya was
attending a prayer in the commemoration of the death of her brother. At around 9
oclock at night, Gros was keeping watch on the movements of Fiya while the accused
and Souval were hiding in her yard. The accused had with him a one end pointed iron
bar of 30cm long and with a diameter of 16mm. The accused and Gros had their faces
masked since Fiya knew them. When Fiya opened the gate and was walking towards
her house, Souval caught hold of her from behind and pressed her mouth with his hand.
Fiya struggled and her bunch of keys fell down. The accused picked up the keys and
opened the door of the house. Souval dragged Fiya in a room, beat her up and asked
her for her jewelries and to which Fiya replied that she had none.

Meanwhile the

accused locked the door and searched for money and jewelries everywhere in the
house. Accused saw a hundred Euro note in a cupboard and put it in his pocket.
After searching for about twenty minutes, the accused peeped into the room
where Fiya and Souval were. He saw Souval on the bed raping Fiya while continuously
swearing at her and asking her for her jewelries and to which Fiya again replied that she
had none. The accused saw Fiya struggling and at that moment, he heard her calling
him by his nickname Shameem. The accused continued searching in a cupboard
found in the room where Souval was raping Fiya.

He then realised that Fiya had

recognized him and that he would be in trouble. The accused asked Fiya several times
for her jewelries but she made no reply. The accused then informed Souval that they
had to kill Fiya. Fiya was still on the bed when the accused violently inserted the iron
bar, which he had with him, into the vagina of Fiya. The latter kept on struggling but
made no mention of any jewelry. The accused pulled out the iron bar and he saw a jet of
blood coming out from Fiyas private part.

Souval and the accused dragged the

deceased in the corridor and the accused then made her lie on her belly. While Gros
was sitting on her back to prevent her from moving, the accused wrapped her neck with
a pair of trousers commonly known as tchous. The accused and Souval pulled the
trousers from each end till the deceased stopped moving.
Having killed Fiya, accused and his two confederates kept on searching for
money and jewelries. After an hour, the accused unlocked the door and they all left the
house. Souval informed them that he had stolen 18,000 rupees and they shared the
loot. Accused took along the iron bar, washed it and put it in his workshop. On the next

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day, the accused hid in a guesthouse situated in Port Louis. He paid the rent of the
guesthouse from his share of the loot.

One of the enquiring officers, ex inspector

Jokhoo stated in Court that the accused did not cooperate with the police. However, the
accused confessed the crime and led the police to the relevant spots mentioned in his
statements.
Dr S.K.Gungadin performed the autopsy on the body of the deceased and
certified that the cause of death was asphyxia due to ligature strangulation.

He

explained that a soft material was tied around the neck to constrict the air passage
causing a deficiency of oxygen in the tissue and organ of the body leading to death of
the victim. Dr. Gungadin further stated that all parts of deceaseds genital area including
vaginal wall, hymen vestibule and other minor structures were injured by the introduction
of a foreign body inside the vagina and the anus as explained in his report.
On the other hand, the accused made a statement from the dock expressing
remorse and begging for excuse from the Court.
Counsel for the State has submitted that the Court should take into account the
aggravating circumstances, the fact that the accused was the mastermind, the violence
used upon the deceased who was in a vulnerable situation and the previous convictions
of the accused, which show that he has a propensity to rob and has no respect to human
life. Counsel has also submitted that the Court should consider passing a sentence of
40 years and that the sentence should commence at the expiration of the imprisonment
to which the accused had previously been sentenced for an offence of murder.
Counsel for the accused has submitted that the original plan was to commit a
larceny and the murder happened in the course of the robbery in circumstances beyond
the control of the accused. The accused was 23 years old when he committed the
offence. Counsel has further submitted that the Court should give a concurrent
sentence.
The accused is now 31 years old. Until the day of hearing he pleaded not guilty
to the initial information. However, on the day of the hearing, it was only after the Jury
was empanelled and the case of the prosecution was about to start that the accused
decided to plead guilty to the amended information.
In the case of R V Caley [2013] 2Cr. App. R.(S.) 47, CA, It is said that whereas
the largest discount for a plea of guilty is of about one-third, and is to be accorded to
defendants who indicate their plea at the first reasonable opportunity, and such

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opportunity normally arises in police interview.
In the present case, the accused was arrested in 2008 and he pleaded guilty in
2016 when the case was ready to be heard and all witnesses were present. Therefore,
it cannot be said that the accused pleaded guilty in a timely manner.
It is noted from the record of convictions,(Document X1 refers) that the accused
has an impressive number of previous convictions, namely: 5 cases of larcenies
including one case committed by 2 individuals and one case with false keys; nine cases
of assault; one case of rape; one case of sodomy and one case of murder for which the
accused was sentenced to 40 years penal servitude in 2014.

He committed two

murders within a period of six months in 2008. The accuseds record shows that from a
young age he had a propensity to commit acts of violence, robbery, sexual offence and
murder, and that lesser modes of punishment had no effect on him since he was at first
given non-custodial sentences, then short periods of imprisonment before being
sentenced to 40 years of penal servitude. The accused was given several chances to
mend his life but he continued to reoffend and get involved in more and more serious
crimes.
True it is that an offender is not to be punished for his past offences for which he
has already been punished. However, it is also well settled that previous convictions of
an accused are relevant to the sentencing exercise. It is stated in Archbold Criminal
Pleading Evidence and Practice 2016 Ed., para 5-70:
First, they (previous convictions) may go to the seriousness of the instant
offence. Secondly, they may be indicative of the dangerousness of the offender, and of
the need for the public to be protected from him. Thirdly, they may provide evidence of
the effectiveness of a particular method of disposal adopted previously in the case of the
offender; or, alternatively that a particular measure was unsuccessful. Fourthly, they
may provide an insight into the individuals criminal career, and. In particular, that he has
made a real effort over a period of years to put a previous pattern of offending behind
him.
In the case of Jean Alain Lindor v The State [2015 SCJ 14], it was held that
the learned Magistrate was right to state these antecedents tended to show the deviant
character of the appellant who seemed bent on committing this type of offence and that
society accordingly needed to be protected from him In these circumstances, we
are unable to find fault with the manner in which the learned Magistrate dealt with the
appellants previous convictions.

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In the previous murder case of The State v Naseerudin Shameem Tengur
[2014 SCJ 409], the accused and two other persons took the deceased, a prostitute, to
a secluded place at Balaclava to have sexual intercourse with her for payment but with
the intention to rob her of the money paid. While one of his friends who was a driver
was having sexual intercourse with the deceased, the latter looked at the number plate
of the car in which they had travelled. On becoming aware of this, the accused and his
friends savagely beat her up. They then strangled her with a rope which the accused
was holding and pulling at one end while the driver drove the car over the deceaseds
body. As the deceased was still alive, they laid her on tyres poured petrol and set fire.
In both cases, the previous and the present one, the accused had an intention to
steal. Upon the victims identifying him or having evidence which may lead to him being
identified, he decided to kill them. He strangled both victims. These two murders show
the accuseds violent propensity on vulnerable people especially women and his utmost
disrespect to human life.
I bear in mind that the crime before me was committed after the coming into force
of Act No. 6 of 2007, which amended the law to provide as follows:
222.

Penalty for murder and infanticide


(1) Any person who is convicted of
(a) murder or murder of a newly born child, shall be
sentenced to penal servitude for life or, where
the Court is satisfied that substantial and
compelling circumstances exist which justify the
imposition of a lesser sentence and has entered
those circumstances on the record of the
proceedings, for a term not exceeding 60 years;

The legislator has not specified for which type of aggravating circumstances
should a penal servitude for life be inflicted. It has been left for the Judge in his wisdom
to decide, in the exercise of his discretion, whether there are on record substantial and
compelling circumstances in a case which warrants the imposition of a lesser sentence
for a term not exceeding 60 years.

At this juncture, it is apposite to note that in the United Kingdom, Schedule 21 of

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the Criminal Justice Act 2003 provides that:
4(1)

If (a)

the court considers that the seriousness of the


offence (or the combination of the offence and one
or more offences associated with it) is exceptionally
high, and

(b)

the offender was aged 21 or over when he


committed the offence, the appropriate starting
point is a whole life order.

(2)

Cases that would normally fall within sub-paragraph (1)(a) include(a)

the murder of two or more persons, where each


murder involves any of the following:
(i) a substantial degree of premeditation or
planning,
(i) the abduction of the victim, or
(ii) sexual or sadistic conduct,

(b)

the murder of a child if involving the abduction of


the child or sexual or sadistic motivation,

(c)

a murder done for the purpose of advancing a


political, religious, racial or ideological cause, or

(d)

a murder by an offender previously convicted of


murder. (Emphasis added)

The statutory provisions in England are not binding on our Courts but they can be
referred to as guidelines for sentencing purposes. As stated in Tyack v State [2005
PVR 60]: It is common case and accepted as correct by the Supreme Court in its

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judgment, that the Mauritian Courts will be guided in sentencing by the principles and
guidelines applying in England and Wales, so that the leading English authorities are
generally apposite in sentencing matters.
As a general principle, an offender who pleads guilty may expect some credit, in
the form of a reduction in the sentence.

However, there is no statutory right to a

discount and it therefore remains a matter for the Courts discretion. Now as was stated
in Tyack v The State [2004 SCJ 140]: it was held: We have no doubt been inspired in
our sentencing principles by the English decisions and the practice has always been to
give discount to accused parties who have pleaded guilty and who through their
revelations helped enormously the police in its investigation to catch up with the
wrongdoers. What is the discount to be granted to an accused party who has pleaded
guilty has always been a vexed issue and each case must be dealt with on its own merit.
The Court is aware that it is impossible to have uniform sentence. For this reason, the
Courts have come up with the principle that there must be uniformity in the approach of
sentencing We must also not forget that the local social context is very different
from what obtains in the United Kingdom and we must therefore not blindly follow what
obtains in the United Kingdom..
It must also not be forgotten that the Court has, on the one hand, a duty towards
society in not sending the wrong signal to the public at large when punishing a
wrongdoer for his breaches of the law and, on the other hand, the Court has a duty to
ensure that accused must not leave the Court with the sense of grievance that he had
not been heard and that no consideration had been given to the numerous mitigating
factors in his favour.
However, it must also not be forgotten that the culprit must not believe that he
would be leniently dealt with just because he has confessed and he has co-operated
with the police and has pleaded guilty.
Moreover, in Goolfee Sheik Nizam v The State [1996 SCJ 144] it was stated
of course there may be cases where the crime is so heinous that a plea of guilty should
not operate as a veil.
In The State v Liyyakat Ali Polin [2004 SCJ 187], the learned Director of Public
Prosecutions had, in his wisdom, filed a nolle prosequi in respect of two information
whereby the accused was charged with the offence of manslaughter and of murder
respectively. The accused was then charged under three counts of wounds and blows
causing death without the intention to kill but which wounds and blows nevertheless

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caused death of three named persons contrary to section 228(3) of the Criminal Code.
The maximum penalty by law was 10 years penal servitude. The accused pleaded
guilty under each of the three counts. The Court stated I have given due consideration
to the various mitigating circumstance in accuseds favour but I cannot grant him much
discount for I find that the seriousness of the offences in the circumstances that they had
been perpetrated weighs heavily against him and furthermore an exemplary punishment
is called for, otherwise, I would be giving the wrong signal to the public at large. Despite
his plea of leniency, I am of the view that he does not deserve much sympathy.
In the case of R v Anwar Rosser, Court Appeal [2014] EWCA Crim. 2205, the
appellant pleaded guilty to a charge of murder.

The cause of death was manual

strangulation with stab and incised wounds. The appellant inserted a metal coat hanger
to a depth of 15 cm into the anus of the victim either before he died or shortly thereafter.
The only issue before the Court was whether a significant minimum term should be
passed or whether the Judge should impose a whole life order as the murder fell within
paragraph 4(2) (b) of Schedule 21. The Judge concluded that the aggravating factors
significantly outweighed the mitigating factors of his personality disorder, his
considerable remorse and his guilty plea. As to the guilty plea, the evidence against
Rosser was irrefutable and could count for little. There was nothing in the material
before the Court could or should lead the Court to depart from the statutory staring point
of a whole life order. The Judge imposed a whole life order. The Judge had made no
proper allowance for the remorse and guilty plea. The Court of Appeal held that the
Judge took into account all the circumstances of the case; he was entitled to give to
each of those circumstances the weight he gave them. There is no basis on which it
can properly be argued that a whole life order was wrongly imposed.
In the case of R v Jamie Reynolds [2014] EWCA Crim. 2205 the Court of
Appeal held that where a Court determines that there should be a whole life minimum
term, there will be no reduction for a guilty plea.
In Attorney Generals Reference No.69 of 2013 (McLoughlin) [2014] EWCA
Crim. 188, it was observed that A Court must only impose a whole life order if the
seriousness is exceptionally high and requirements of just punishment and retribution
make such an order the just penalty
It is not disputed from the evidence on record that the deceased has been murdered
in a most barbarous manner. The other aggravating factors are namely that:
1)

the accused knew the victim was an unmarried 58 years old woman and

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was living alone and on the night of 21 December 2008, she was attending a
prayer and would return home late;
2)

the deceased was the accuseds aunt and they bear the same surname;

3)

the accused knew that the victim was in a vulnerable position and he took

advantage of same;
4)

the accused and one of his confederates were masked;

5)

the deceased was brutally assaulted by Souval and the accused, such

that and in the medico-legal report, the injuries are referred to as follows: black
eyes both sides; bruises on the inner lips, face, chest and ear; 2 nd to 5th ribs
fractured on right and left anterior; bruise at both sterno hyoid muscles and
platysma muscles lateral wall of the vagina and hymen were lacerated and bruise
and abrasion in the anal region among others;
6)

the victim was raped by accuseds confederate in his presence;

7)

the accused violently thrust a pointed iron bar in the vagina of the

deceased when the latter was still alive, leading to a jet of blood oozing out of her
private part;
8)

a degree of sadism and sexually motivated act were inflicted on the

deceased prior to strangulating her;


9)

the injuries inflicted in the genital part of the deceased must have been

excruciatingly painful;
10)

the mental and physical suffering inflicted on the deceased before death,

was barbaric;
11)

the accused removed the iron bar from the vagina of the deceased,

washed it and placed it in his workshop to conceal the weapon used to torture
the deceased;
12)

the deceased was dragged and was strangulated with her tchous; and

13)

after committing a barbarous crime, the accused hid himself believing that

he would get away with murder.


The aggravating factors enumerated above, no doubt make this case fall in the
category of the exceptionally high serious offences. The atrocity with which the crime

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was committed especially when there was no valid reason to wickedly torture and kill an
elderly aunt except that she had recognized him. The aggravating circumstances of the
present case, the behaviour of the accused during and after the commission of the crime
and the fact that he had a previous conviction of a similar offence of murder committed
on a defenceless person six months prior to the commission of the present crime,
outweigh the guilty plea and the remorse and excuse expressed by the accused.
Time and again this Court has in passing sentence recalled the need to view with
severity crimes involving the wilful taking of the life of another person. The crime of
murder is in itself a serious offence and when committed in a barbarous manner as in
the present case, the punishment to be meted out to the perpetrator must be of an
exemplary severity.
In State v Sookar [2016 SCJ 48], the accused pleaded not guilty to the murder
of his stepdaughter of 17 years old. The body of the deceased was discovered in a
ravine at Plaine Champagne in a state of decomposition without any items on her which
could facilitate identification. However, the braces that were fixed to her teeth led an
orthodontist who identified her. The accused confessed that he killed the deceased by
smothering her to death and disposed of her body with the help of his driver. Later he
came up with inconsistent versions. The accused was sentenced to penal servitude for
life despite the fact that he had no previous conviction of cognate offence.
In deciding the appropriate sentence, a Court should always be guided by
considerations such as public interest and public safety.

Criminal law is publicly

enforced not only with the object of punishing a specific crime, but also with the purpose
that the punishment also acts as a general deterrence in the hope of preventing others
from committing similar offences. It has been observed that there is an increase in the
number of similar crime. It is therefore imperative to impose a sentence which would act
as a general deterrent to similar potential offenders.
In regard to the punishment to be inflicted on the accused, I wish to observe that
I take serious view of the offence and heinous circumstances in which it was committed.
I find no substantial or exceptional circumstances that would warrant a lesser sentence
for a term not exceeding 60 years.
Therefore, considering the seriousness of the offence and the circumstances in
which it was committed, I sentence accused to penal servitude for life and to pay
Rs1000/- as costs.

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Exhibits to be forfeited.
The accused has made a request to the Court that he is allergic to seafood and
canned food.

I invite the Commissioner of Prison to consider having the accused

examined by a nutritionist.

G. Jugessur-Manna
Judge
27 July 2016

--------------------------

For Appellant:

A. Peeroo, of Counsel

For Respondent

State Counsel
State Attorney