State v Wakilau - Sentence [1993] FJHC 104; Hac0014t.93s (10 November 1993)

IN THE HIGH COURT OF FIJI
At Suva
Criminal Jurisdiction

CRIMINAL CASE NO. 14 OF 1993

THE STATE

v.

MANUELI WAKILAU
AND 6 OTHERS

ARSON: Contrary to Section 317(a) of the Penal Code, Cap.17
MURDER: Contrary to Section 199(1) and Section 200 of the Penal Code, Cap. 17

Mr. I. Wickramanayake for the State
Mr. T. Fa for all Accused persons

SENTENCE

Manueli Wakilau you have been convicted of Manslaughter. This is an offence for which our criminal law provides 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 as aggravating factors to be taken into account and weighed in the balance.

In this case the court has found that the first accused Manueli Wakilau unlawfully caused the death of Ro Baleibau Duilomaloma by setting fire to his house on the night of the 25th of September 1992 and in which fire the deceased sustained severe burns to the body from which he later died.

In setting fire to the deceased's house learned counsel for the defence says that you were merely answering a "call of duty" in carrying out the orders of your paramount chief whom it is claimed you are traditionally bound to obey. Let me say at once that no one has a duty to obey or carry out a manifestly unlawful order not even if it comes from his paramount chief.

The law administered by this court exists for the protection of all members of this society both villager and chief and even those whom it might be thought whether rightly or wrongly practise 'witchcraft' and no one no matter his chiefly status or traditional duties is permitted to take the law into his own hands and act as accuser, judge and executioner much less will this court countenance the taking of a human life by unlawful means whether it be in a rural village or an urban centre.

Were this not so our society would run the serious risk of being ruled not by the law of the land but, as this case has so graphically and tragically shown, we would be ruled by rumour, suspicion and fear. Whatsmore the value of life and property in our villages would be diminished and depend on the whim and fancy of the chiefs. I cannot accept that that is so nor will this court permit it.

It must be a matter of grave concern that the order to burn the deceased's house appears to have been endorsed by a paramount chief but that imprimateur does not render it any less "unlawful". Nor does it legitimise your actions in burning the deceased's house.

Learned counsel says that when you committed this crime you knew of no authority in the village other than that of your paramount chief but I cannot ignore the fact that even Dr. Buaserau's letter was copied to the Navua police and the office of the Director of Public Prosecutions.

I am not unmindful that you have spent the past year remanded in custody but it would be a 'gross injustice' if I were to allow you to go home as counsel urges me.

The most lenient sentence of this court is that you shall serve a sentence of imprisonment for 6 years with effect from the 27th of September 1992.

I turn now to you Saiasi Lewaca. You have been convicted of an offence of Arson in that you 'wilfully and unlawfully' set fire to the house of Ratu Jope Batilekaleka.

The seriousness of this offence may be gauged from the maximum sentence provided for the offence which like Manslaughter is life imprisonment.

It is purely fortuitous that no one was seriously injured when the bure of Ratu Jope was burnt to the ground.

Your act in burning the bure was gratuitous and although counsel says you now regret your actions and realise its seriousness nevertheless your unquestioning blind obedience to an unlawful "call to duty" must be viewed with the greatest concern.

I accept that you are a first offender and that you too have been in remand since September 1992 but I would be failing in my duty to society if I did not impose on you a deterrent sentence.

The most lenient sentence of the court in your case is one of 2 years imprisonment with effect from the 27th of September, 1992.

(D.V. Fatiaki)
JUDGE

At Suva,
10th November, 1993.

HAC0014T.93S