State v Waqabaca [2010] FJHC 304; HAC054.2009S (13 August 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 054 OF 2009S

STATE

vs

1. MESULAME WAQABACA
2. TIKO UATE

Counsels: Mr. L. Fotofili for the State
Ms. S. Vaniqi for Accused No.1
Ms. K. Vukikomoala for Accused No. 2

Hearings: 7th to 27th July 2010
Summing Up: 2nd August 2010
Judgment: 3rd August 2010
Sentence: 13th August 2010

SENTENCE

1. Mesulame Waqabaca and Tiko Uate, after a trial lasting approximately 15 days, the three assessors unanimously found you two, guilty of murdering Simione Navulatamata, on 16th May 2009, at Nasinu, in the Central Division, contrary to sections 199 and 200 of the Penal Code, Chapter 17. On 3rd August 2010, the court agreed with the assessors, and found you two guilty of murder, and convicted you two accordingly.

2. Simione Navulatamata was returning from work on 16th May 2009, between 8pm and 9pm. He got off the bustop at Hanson Supermarket, and proceeded to take a short cut to his home, at Karobo Street, Makoi. He took the short cut through Makoi Methodist School. You two were drinking with others near the Makoi Methodist School driveway. It was noted that you two have been drinking liquor since the morning. Mesulame, you then encouraged the others in your drinking party to attack and rob Simione. Only Tiko responded. Tiko held Simione up, while you rained punches on Simione. A heavy punch landed on Simione's left side of his head, causing brain injuries, resulting in his death. Mesulame, you threw the punch that killed Simione. Tiko, you assisted Mesulame, by holding onto Simione, while he was being punched by Mesulame.

3. There is only one mandatory sentence for murder, and that is life imprisonment. However, the court can fix a non-parole period, pursuant to section 18(1) of the Sentencing and Penalties Decree 2009.

4. In this case, I have taken into account the mitigating factors advanced by your counsels. Both of you are first offenders. Mesulame, at the time of the offence, you were 19 years old, while Tiko, you were 20 years old. This offending occurred because of you two's inability to control the effects of alcohol. Although intoxication is no defence to a criminal charge, I'm taking it into account, as a factor that weakened your self-control. Tiko, in your case, I take note that your parents have passed away, and you are the sole breadwinner, at such young age. I also note that, you didn't throw the lethal punch that caused Simione's death.

5. The aggravating factors in you two's case were as follows. Simione Navulatamata died as a result of you two's joint attack. Furthermore, this was an unprovoked attack on an innocent member of the public, who was returning home, after work. You two showed no mercy when you attacked Simione and stole his mobile phone, in a public street. He was punched several times by Mesulame, while being held by Tiko. When Simione cried in pain, as a result of your two's attack, none of you showed any mercy to stop and call for medical assistance. Instead, you fled and left him to die at the crime scene.

6. A message of advice should be sent to our youths, through you two. They should learn to control the effects of alcohol, or it will destroy them. I sentence both of you to life imprisonment. Mesulame Waqabaca, since you threw the lethal punch that killed Simione Navulatamata, pursuant to section 18(1) of the Sentencing and Penalties Decree 2009, I fix the non-parole period of 14 years imprisonment. Tiko Uate, since you didn't throw the lethal punch that killed Simione Navulatamata, pursuant to section 18(1) of the Sentencing and Penalties Decree 2009, I fix the non-parole period of 12 years imprisonment.

Salesi Temo
ACTING JUDGE

AT Suva
13th August, 2010