State v Tiritiri [2010] FJHC 470; HAC018.2008 (27 October 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC 018 of 2008

BETWEEN

STATE
PROSECUTION

AND

VILIAME ROGOSE TIRITIRI
THE CONVICT

Counsel: Ms. E. WHIPPY, State Counsel- Counsel for State
Mr. I. KHAN -For the Convict

Dates of Trial : 12th, 13th, 14th and 18th October, 2010
Date of Summing Up : 21st October, 2010
Date of Conviction : 21st October, 2010
Date of hearing of sentencing submissions: 22nd October, 2010
Date of Sentence : 27th October, 2010

RULING ON SENTENCE

1. You - Viliame Rogose Tiritiri - were found guilty of murder under Sections 199 and 200 of the Penal Code after trial. The assessors were unanimous in their opinions. I directed myself with my summing-up of the case and concurred with the opinions of assessors. You were, accordingly, convicted of the offence of murder on 21. 10. 2010.
   
2. There is only a mandatory sentence of life imprisonment, as fixed by law, for the offence of murder.
   
3. Submissions, however, were invited from counsel to exercise the powers of court in terms of Section 18 of the Sentencing and Penalties Decree No 42 of 2009. Counsel for the prosecution and for the defence, accordingly, filed written-submissions. In addition, they were given an oral hearing as well. Submissions of counsel were helpful to form the opinion of court as to the imposition of the period of sentence of imprisonment during which the offender shall not be eligible for release on parole.
   
4. The deceased - Viliame Goneivalu - was 45 years old, when he succumbed to serious head injuries on 01st April, 2008. The Post-Mortem Report showed that he had suffered 'diffused cerebral oedema', 'diffused congestion' and 'blood clot along lateral ventricle' [of the brain]. The condition that directly led the deceased to death was 'intra-ventricular haemorrhage and diffused cerebral oedema due to blunt impact [on head] associated with systemic shock'.
   
5. Evidence revealed that you took offence at the elderly advice given by the deceased not to drink, yell and misbehave in the premises of Namaka Public School. This was followed by an argument and a quarrel. Emboldened by drinks in the night of 20th /21st March, 2008, you rushed to the 2nd accused, who was identified as the headmaster of the school, who too was drinking in a location upstairs in the school. You accompanied the 2nd accused, who was acquitted by court pursuant to the unanimous opinions of the assessors, along with a few others in order to pursue the dispute with the deceased.
   
6. As the deceased fell on the ground in the course of the melee that ensued, you kicked and stomped on the body of the deceased. You furthered your attack by smashing a cement-block on the head of the deceased despite pleas from those around you. Evidence revealed that your attack with the cement-block that alighted right on the head of the deceased breaking the block into pieces, had caused serious head injuries.
   
7. The doctor, who gave evidence on the Post-Mortem, clearly disclosed the extent of head-injuries, which alone had caused the death of the deceased. Death eventually ensued after the deceased relentlessly fought for life for ten days from 21.03.2008, the date on which he [the deceased] received the injuries at your hands.
   
8. The above set of facts, as opined unanimously by the assessors, constitutes the offence of murder in the correct spirit of Section 199 of the Penal Code. The law, having been alive to the necessity to preserve the right to life of any man or a woman, has mandated that anyone who commits the offence of murder must be punished with imprisonment for life as a deterrent.
   
9. Your act of attacking a fallen man with a heavy object, such as a cement-block, is heinous and hardly leaves room for mercy. It is in light of the above set of facts that court considers the sentencing guidelines as enumerated in Section 4 of the Sentencing and Penalties Decree. Section 4 of the Decree provides that a sentence is imposed by a court of law for the purposes inter alia of:
   

(a) Punishing offenders to an extent and in a manner which is just in all the circumstances;

(b) Protecting the community from offenders;

(c) Deterring offenders or other persons from committing offences of the same or similar nature;

(e) Signifying that the court and the community denounce the commission of such offence; or

(f) Any combination of these purposes.

10. In sentencing an offender, a court must have regard to:
    

(a) The maximum penalty prescribed for the offence;

(b) Current sentencing practice and the terms of any applicable guideline judgment;

(c) The nature and gravity of the particular offence;

(d) The offender's culpability and degree of responsibility for the offence;

(e) The impact of the offence on any victim of the offence and the injury, loss or damage resulting from the offence;

(f) Whether the offender pleaded guilty to the offence, and if so, the stage in the proceedings at which the offender did so or indicated an intention to do so;

(g) The conduct of the offender during the trial as an indication of remorse or the lack of remorse;

(h) Any action taken by the offender to make restitution for the injury, loss or damage arising from the offence, including his or her willingness to comply with any order for restitution that a court may consider under this Decree;

(i) The offender's previous character;

(j) The presence of any aggravating or mitigating factor concerning the offender or any other circumstance relevant to the commission of the offence; and

(k) Any matter stated in this Decree as being grounds for applying a particular sentencing option.

11. I have already commented on the nature and the gravity of the offence and your culpability and responsibility in its commission. The deceased was a middle-aged married man and he was a father of two sons. He did not deserve to be killed in such a gruesome manner as he was protected by the natural right to life, which is now ingrained in positive law as contained in the Penal Code. The death of the deceased would undoubtedly have been a great loss to the two sons and to those of his family circle in particular and to the community at large.
    
12. You were only 22 years of age in 2008, which was less than half the age of the deceased, when you engaged in the wrongful act of attacking him [the deceased] until he became motionless. This was almost patricide. This showed that you have had scant regard at least towards adulthood of the deceased. Court is inclined to take a stern view on this aspect as the progress of any society in terms of spirituality is bound to impede, if no respect is shown to the adults [and children]. Fiji is no exception to that rule, which has almost gained universal acclaim.
    
13. The above, taken together with the fact that you hit a fallen man, sound a sense of brutality; and, they operate as aggravating factors.
    
14. Court, however, simultaneously takes into account the fact that the killing was not the outcome of a pre-plan or a conspiracy targeting the deceased. It rather happened in unforeseen circumstances. It would, therefore, be apt to describe the chain of events as having resulted from lack of self-restraint fuelled, perhaps, by Dutch courage.
    
15. Other factors, than the character of the convict, as contained in paragraph 10 (f), (g) and (h) are inapplicable in the context of this case in fixing the non-parole period.
    
16. Matters pertaining to character and personal attributes, which I consider now, are:
    

(i) The convict is the first offender and bears hitherto a character without blemishes. Learned counsel for the convict submits that he is now 24 years of age, married and having a daughter of 1 year and 4 months old. The wife of the convict is now away in Vanuatu attending to her higher studies and the convict shoulders the responsibility of looking after the small child, his brother's children and the 84 year-old grandfather;

(ii) The convict has had some heroic feat to his credit in that he had risked his life to save a drowning student of Namaka Public Free Bird Institute in Beachcomber Island;

(iii) The convict had been helping disabled children in Tau Village with donations and he also had been assisting flood and cyclone victims in Nadi; and,

(iv) The convict has had a good character as supported by letters of Befunds Butcher and Restaurant at Nadi Airport, Namaka Public Free Bird Institute, Nadi Jetset Rugby Union, Crossroad International Assembly of God, Tsu Village Herald, Tau Rugby Club, Tau Village Chairman.

These matters were not sought to be disputed by the State and court took into its account for this ruling.

17. In the case of State v Mahendra Sharma (HAC 191/09), a minimum period of 13 year imprisonment was imposed in a case concerning the murder of a son by a father having regard to the extenuating circumstances in that case, though initially sounded that a minimum of 18 years of imprisonment was appropriate to send a message to the parents who take the lives of their own children.
    
18. In the case of State v Nioni Tagici (HAC 25/09: Lautoka HC), a minimum term of 12 year imprisonment was imposed after the accused was found guilty of murdering her husband by attacking with a heavy metal candleholder.
    
19. In the case of State v Fraser (HAC 118/2006: Lautoka HC), where the murder was committed on contract, the accused was sentenced to a minimum period of 16 year imprisonment.
    
20. In the circumstances, I sentence the accused to life imprisonment as mandated by law. Upon consideration of the factors that have the character of aggravation and the matters set-out in paragraph 16 above, I think it fit to act under Section 18 (1) of the Decree. I, accordingly, order that the accused shall not be eligible for parole within 12 years from 27th October, 2010, the date of this sentence.
    

Priyantha Nawana
Judge

27th October, 2010, High Court, Lautoka.