State v Baisagale [1991] FJHC 25; HAC0032.1990s (21 March 1991)

IN THE HIGH COURT OF FIJI
At Suva
Criminal Jurisdiction

CRIMINAL CASE NO. 32 OF 1990

THE STATE

v.

ROPATE BAISAGALE

MURDER: Contrary to Section 199/200
of the Penal Code Cap. 17

SENTENCE

The accused has been convicted of the Manslaughter of 2 persons. This is an offence for which our law has provided a maximum sentence of life imprisonment.

The unlawful killing of a human being is clearly a serious matter but the law and the courts in its collective wisdom also recognises that death may result in an almost infinite variety of circumstances and the only sure and certain guide for a court faced with the difficult and necessary duty of passing sentence is to be guided by the facts in each case with due regard to the personal circumstances of the offender.

Furthermore in every offence committed there are mitigating as well aggravating factors to be taken into account and weighed in the balance.

In this case the court has found that the accused Ropate Baisagale unlawfully killed Peniasi Yasawa and Metuisela Waqa in the early hours of the morning of the 26th of April 1990 whilst acting under severe provocation that extended over several hours and in which the accused was taken advantage of, badly treated, and finally robbed and beaten senseless by ungrateful persons who have been described as belonging to the "criminal element" in our society.

And perhaps understandably there may even be a widespread unspoken feeling that the accused should not be punished instead he should be rewarded for his `services' in ridding our society of 2 known criminals, but such a view would be completely misguided, dangerous and wrong.

The law exists to protect everyone equally, those who enact it, those who enforce it and even those who have broken it and no one is permitted to take the law into his own hands and act as victim, prosecutor, judge and executioner much less will the law countenance the unlawful taking of a human life in those circumstances.

Then counsel submits that no special account should be taken of the weapon used. Put simply: "it was available and he used it". But whilst that may be so the use of any weapon is an aggravating factor and this Court would be naive to accept that a caneknife bears any similarity to an M-16 semi-automatic assault rifle.

This country has been fortunate in that, unlike some other countries, firearms are not readily or widely available nor do they figure as regularly in the commission of offences and every effort must be made by the authorities concerned to ensure that this remains the rule.

I have carefully considered the evidence called on behalf of the accused and although there can be no denying that the accused is an exemplary soldier with an enviable record of service it must be a matter of grave public concern that he was able to retain or keep the rifle and more than 50 rounds of live ammunition in his home.

In all the circumstances of the case the most lenient sentence that this Court can pass is one of 6 years imprisonment on each count both sentences to be served concurrently, and mindful that the accused has been in custody for almost a year the sentences are hereby ordered to take effect from the 26th of April, 1990.

(D.V. Fatiaki)
JUDGE

At Suva,
21st March, 1991.

HAC0032.90S